
    THE STATE v. BERRY JOHNSTON.
    (S. C., Thomp. Cas., 19-20.)
    Knoxville,
    September Term, 1847.
    MALICIOUS STABBING. After acquittal of, no conviction of assault and battery.
    Where there is an acquittal of malicious stabbing upon an indictment for that offense under the Act of 1839, chapter 38, section 55 [Code, section 6449], there can be no conviction of an assault and battery.
    Acquittal of malicious shooting or stabbing, and conviction of assault and battery, when.
    The holding in this case, and in State v. Valentine, 6 Yer., 533, and in Mabry v. State, 9 Yer., 307, that if the defendant be acquitted of the malicious shooting or stabbing, he cannot be convicted of an assault and battery, seems to be virtually overruled by Carden v. State, 3 Head, 367, holding that where a defendant is acquitted of the charge of mayhem, he may be convicted of an assault and battery. But whether this be so or not, under the Act of 1851-53, chapter 36 (Code, section 7197), there may be an acquittal of the malicious shooting or stabbing, and a conviction of an assault and battery.
    In tllis case, tbe defendant was indicted in tbe circuit court of Roane county for malicious stabbing under tbe Act of 1829, chapter 23, section 55, and upon the trial, tbe court charged tbe jury upon tbe authority of a note to Caxutbers and Nicholson’s statutes, page 325, that they might acquit of the- felony and convict tbe defendant of an .assault and battery, and tbe jury accordingly returned a verdict of not guilty of tbe malicious stabbing, but guilty of an assault and battery. Tbe judgment was arrested upon motion, and tbe attorney-general, on behalf of tbe state, appealed.
   By tbe Court:

Let tbe judgment of tbe circuit court be affirmed, and tbe prisoner discharged.

Judgment affirmed.  