
    Marshall v. The Commonwealth.
    On an indictment for unlawful stabbing under the statute of Virginia, a verdict of “ guilty of unlawful stabbing,” will not authorize a judgment; but the Court should direct a new trial.
    
      Andrew J. Marshall was indicted in the Circuit Court of Henrico county and the City of Richmond, for malicious and unlawful stabbing. The indictment contained two counts. The first charged that the prisoner feloniously, unlawfully, wilfully, voluntarily, maliciously and of purpose, stabbed one Jane D. Roach, with intent to maim, disfigure and kill the said Jane D. Roach. The second count charged that the prisoner unlawfully, feloniously, voluntarily and of purpose, stabbed the said Jane U. Roach, with intent to maim, disfigure, disable and kill the said Jane D. Roach.
    
    The prisoner pleaded not guilty; and on the trial, the jury found “ the prisoner not guiffy under the first count of the indictment, but guilty of unlawful stabbing and they fixed the term of his imprisonment in the penitentiary at four years. Thereupon the prisoner moved the Court to discharge him from custody, on the ground that the verdict rendered by the jury was in effect and by law a verdict of not guilty under the second count of the indictment against him. But the Court overruled the motion.
    The prisoner then moved the Court to arrest the verdict, and to award him a new trial, on the ground that the verdict was repugnant to the issue made by the pleadings in his case, not responsive to the issue raised, and does not find him guiffy of any offence under the first section of the statute of Virginia. It presents no case, and finds no offence for which the Court can pronounce judgment on the prisouer. But the Court overruled the motion, and sentenced the prisoner to be imprisoned in the penitentiary for four years, the period by the jurors in their verdict ascertained. Whereupon the prisoner applied to this Court for a writ of error, which was awarded.
    Gilmer, for the prisoner.
    
      The Attorney General, for the Commonwealth.
   By the Court.

The judgment is reversed, and a new trial awarded on the second count.  