
    James R. Brantley et al. vs. The State of Mississippi.
    Under the statute in this state, (Hutch. Code, 983, § 22,) which provides, “ that upon an indictment for an offence consisting of different degrees, the jury may find the defendant not guilty of the offence charged, hut guilty of an inferior degree of such offence,” a jury may find a defendant indicted for an assault with intent to commit murder, guilty of a common assault and battery; and therefore, since that statute, however it may have been at common law, it will not be improper to join in the same indictment a count for each offence.
    Where a party indicted in two counts, is found guilty only on one, objections to the count on which he is acquitted, will not be available to him.
    It seems that where counts are improperly joined in an indictment, the objec-' tion can only be reached by motion to quash, or to compel the prosecutor to elect on which count he will proceed.
    Where no exceptions in the court below are taken to the grand jury, either by plea or otherwise, the high court of errors and appeals will not, after a plea of not guilty, and trial without objection, go back to look for defects in the organization of that body.
    
      In error from the circuit court of Yalabusha county; Hon. Francis M. Rogers, judge.
    James R. and William Brantley were indicted in two counts, The body of the indictment was in these words, viz.: “ The grand jurors of'the state of Mississippi elected, empannelled, sworn, and charged, to inquire in and for the body of the county of Yalabusha, upon their oaths present that James R. Brantley and William .Brantley, late of said county, laborers, on the first day of May, in the year of our Lord one thousand eight hundred and forty.-eight, in t^ie county aforesaid, in and upon one Jefferson Russell Tribble, there being, an assault did make, and the said James R. Brantley and William Brantley, then and there each having large clubs and bowie knives, the same being then and there deadly weapons, then and there with the clubs and knives aforesaid, the said Jefferson Russell Tribble did beat, bruise, wound, cut, and ill treat, and other wrongs to the said Jefferson Russell Tribble, did, with intent him, the said Jefferson Russell Tribble, then and there wrongfully, maliciously, feloniously, and of his malice aforethought, to kill and murder contrary to the statute in that case provided, and against the peace and dignity of the state of Mississippi.
    “And the jurors aforesaid, upon their oaths aforesaid, further present that the said William Brantley and James R. Brantley, late of said county, laborers, on the first day of May, in the year of our Lord one thousand eight hundred and forty-eight, in the county aforesaid, in and upon one Jefferson Russell Tribble, there being, an assault did make, and him the said Jefferson Russell Tribble then and there did beat, bruise, wound, and ill treat, to the great damage of him the said Jefferson Russell Tribble, and against the peace and dignity of the state of Mississippi.”
    The defendants demurred to the first count, and the demurrer was overruled. A trial was had on the plea of not guilty; and the jury found them not guilty as to the first count, and guilty on the second. A new trial was refused ; the court fined them one hundred dollars and costs; and they sued out this writ of error.
    
      
      Acee, for the plaintiff in error,
    Cited Hutch. Code, 960, § 33; Hildebrand v. State of Missouri, 5 Mis. Rep. 548.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill of indictment preferred in the circuit court of Yalabusha county against the defendants. It contains two counts, the first of which charges them with an assault and battery, with intent to murder; the second with an assault and battery only. There was a demurrer to the indictment, which was overruled. The defendants were then tried, acquitted upon the first count, and .found guilty upon the second.

It is insisted that this joinder of counts is error, for which the judgment should be reversed. There seems to have been some want of uniformity in the decisions on this point at the common law, and in the different states of the Union. See 1 Chit. Cr. Law, 250, and notes. But in this state, there is a statute which clearly governs the case. Hutch. Code, 983, $ 22. But at common law such an objection could not have been made available, either upon demurrer, or in arrest of judgment, but only upon a motion to quash, or to compel the prosecutor to elect, on which count he would proceed. Chitty, 248.

By the- statute referred to, it is provided that upon an indict-. ment for an offence consisting of different degrees, the jury may find the defendant not guilty of the offence charged, but guilty of an inferior degree of such offence, and such conviction shall be a bar to any other indictment for any degree of the same offence.” Sec. 22 and 23. If, for example, there had been but the first count in this indictment, the jury might have found the defendant not guilty of the assault with intent to kill, but guilty of the assault and battery. The second count can do no harm, because, although the jury found upon it, they only found what they might have done, under the statute, without such count. At most it was but surplusage, and ought not to be allowed to vitiate. But we think there is now no impropriety in the joinder.

The other objections made to the indictment are not available, especially as they are directed against the first count, and the defendants were acquitted upon that, and found guilty on the second.

No exceptions were taken to the grand jury, in the court below, either by plea or otherwise. We cannot in this court, after a plea of not guilty and trial without objection, go back to look for defects in the organization of that body.

The evidence in the case is rather of an unsatisfactory character. It shows that some suspicion was cast upon the principal witness for the prosecution. But the jury gave him credit, and it is not our province to say they did wrong in this respect.

The judgment is affirmed.  