
    Mabry vs. The State.
    Where a party is Mulicted foi “feloniously and maliciously shooting an« other,” and the jury acquit him of the felony, but find him guilty of acorn» mon assault and battery, the circuit court cannot render a judgment upon such finding, as it has no jurisdiction of an ordinary assault and battery.
    Where a court has not jurisdiction to render a judgment, if it does so, the judgment is void, and an execution thereon, may be superseded and quashed.
    The act of 1832, c. 2, which provides, “that when a person shall be indicted for an assault with intent to kill, or commit other felony, it shall be lawful if the jury cannot find such person guilty of such felony, to find him guilty of an assault or assault and battery, upon whjph, judgment may be pro* nounced,docs not apply to the indictment forjwáíiciousshooting.
    At the November term, 1834, of the Davidson circuit court, Joseph A. Mabry, the plaintiff in error, was arraigned and Died on a bill of indictment, charging him under our penal code with having unlawfully, feloniously, wilfully and malicously shot one John R. Nelson. The jury returned as their verdict, that he was not guilty of felony, as charged, but that he was guilty of an assault and battery upon .the body of the said John R. Nelson. Upon this verdict, the judgment of the court was, that he be fined fifty dollars, and pay the cost of the prosecution. An execution was issued against the said Joseph A. Mabry for the amount of this fine and cost, returnable to the May term, 1835, of said circuit court, which was, by order of the judge superseded; and thereupon a motion was made to vacate and set aside the judgment upon which it had been issued, which was refused by the court, and the supersedeas discharged; from which judgment of the court this writ of error is prosecuted, and it is now contended that the judment is void, and that the court erred in refusing to vacate and set it aside.
    
      T. H. Fletcher <§• Wm. B. Jlnderson for plaintiff in error.
    
      J. Trimble, Solicitor, &c. for the State.
   GREENE J.

delivered the opinion of the court.

We are of opinion that the judgment is void. At the time of trial, the jurisdiction of the offence of assault and battery was by statute given exclusively to the county court, unless it were perpetrated with some felonious intent. The act of 1832, c. 2, which provides, “that when a person sfiall be indicted for an assault with intent to kill, or commit other felony, it shall be lawful in case the jury cannot find such person guilty of such felony, to find him guilty of an assault, or an assault and battery, upon which, judgment may be pronounced,” does not apply tohliis case. This bill of indictment is not for an assault with intent to kill, or commit other felony, but for maliciously shooting. The case of The State vs. Valentine, 6 Yerg. 533, is .directly in point. We do not consider it necessary to determine whether the court below had the power to vacate and set aside the judgment. It did not do so. And we incline to think, that if the power exists, a refusal to exercise it would not be error upon which this court could act; but we are of opinion, that inasmuch as the judgment is .void, no execution could be legally issued upon it, and that the court below, instead of discharging the superse-deas, should have quashed the execution. We therefore reverse the judgment, and direct the execution to be quashed.

Judgment reversed.  