Page:North Dakota Reports (vol. 3).pdf/191

 and battery with intent to do bodily harm as charged in the information, and recommend him to the mercy of the court.” When the prisoner was brought into court for sentence, his counsel appeared and objected to any sentence being pronounced against the prisoner for “any other or higher grade of offense than simple assault.” This objection was overruled, and an exception was taken to the ruling. The court then sentenced the prisoner to a term of eight months in state's prison, an exception being saved to the sentence. The contention in this court is confined to the one question of the legality of the sentence, and the question presented is this: Did the verdict justify a sentence for felony, or should the punishment have been limited to a sentence for a simple assault, or assault and battery? A solution of this question will involve an examination of the information and the verdict, and these must be considered with reference to certain sections of the Penal Code. It is conceded that the information upon which the accused was tried was framed under that part of § 6479 of the Comp. Laws (§ 279 of the Penal Code) which provides that any person “who commits any assault and battery upon another by means of any deadly weapon, and by such other means or force as was likely to produce death, with intent to kill any other person, is punishable by imprisonment in the territorial prison, not exceeding ten years.” As has been seen, the verdict, in terms, finds the accused guilty of “an assault and battery with intent to do bodily harm, as charged in the information.” It is obvious that the legal effect of this verdict is to acquit the prisoner inferentially of the specific offense charged against him in the information; viz: the offense of assault and battery with intent and the question then presented is whether the verdict will justify the sentence actually pronounced against the prisoner. It is clear that the sentence cannot be sustained under the section upon which the information was drawn, (§ 6479, Comp. Laws,) for the reason, as has been stated, that the effect of the verdict is to find the accused not guilty of the crime defined and punished by that section; nor can the conviction be sustained