Page:North Dakota Reports (vol. 3).pdf/192

 under § 6480, Id., which provides for the punishment of “assaults with intent to kill” which are not punishable under § 6479. The plaintiff in error has not been charged with the crime of commiting an assault with intent to commit a felony “other than assaults with intent to kill;” hence the conviction cannot be upheld under § § 6491, 6492, Comp. Laws. It is contended, however, in behalf of the state, that the sentence is valid as a conviction for an offense defined by § 6510, Comp. Laws, (§ 309, Penal Code,) which provides that “every person who, with intent to do bodily harm, and without justifiable and excusable cause, commits any assault upon the person of another with any sharp or dangerous weapon, * * ® is punishable by imprisonment in the territorial prison,” etc. It is well settled at common law that a defendant in a criminal case may be convicted of any offense “included” in the offense charged by the indictment. This principle has been embodied in § 7429, Comp. Laws, (§ 402, Code Crim. Proc.) which reads: “The jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment.” Under a similar statute of the State of Iowa, the Supreme Court of that state, upon rehearing, overruled the original opinion of the court as written by Chief Justice Miller, and held that, “upon the trial of an indictment for an assault with intent to commit murder, the defendant may be convicted of an assault with an intent to commit manslaughter.” State v. White, 41 Iowa, 316, 320; followed in State v. Connor, (Iowa,) 13 N. W. Rep. 327. The principle has frequently been applied, under statutes similar to those in this state, by the Supreme Court of California. People v. Davidson, 5 Cal. 134; People v. English, 30 Cal. 216; People v. Congleton, 44 Cal. 93; People v. Lightner, 49 Cal. 226. In People v. English, supra, the following language is used by the court: “The verdict is followed by the same judgment as though the defendant had been indicted for the offense of which he was convicted.” The same rule obtains in New York, (O'Leary v. People, 4 Parker, Crim. R. 187,) and in Missouri, (State v. Burk, 2S. W. Rep. 10.) These cases,