
    The State v. Berry Johnston.
    CRIMINAL PROCEDURE. — Malicious Stabbing.
    
    Upon an indictment for malicious stabbing under the Act of 1829, Chapter -28, Section 55, the defendant cannot be acquitted of the malicious stabbing, and found guilty of assault and battery.
    In this case the defendant was indicted in the Circuit Court of Roane County for malicious stabbing under the Act of 1829, chapter 28, section 55, and upon the trial the Court charged the jury upon the authority of a note to Caruthers and Nicholson’s statutes, page 825, that they might acquit of the felony and convict the defendant of an assault and battery, and the jury 'accordingly returned a verdict of not guilty of the malicious stabbing, but guilty of an assault and battery. The judgment was arrested upon motion, and the Attorney General, on behalf of the State, appealed.
    
      
       Incorporated into the Tennessee Code of 1858, Sec. 6523. Held, that this act did not apply to malicious stabbing. State v. Valentine, 6 Yerg. 533. Nor to malicious shooting. Mabry v. The State, 9 Yerg. 207. But now contra by the Code, Section 6224, which these decisions seem to have produced. See Hixson v. The State, Infra.
      
    
   By the COURT:

Let the judgment of the Circuit Court be affirmed and the prisoner discharged.

Judgment affirm d.  