
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1809.
    The State v. Wilburne.
    If an indictment for assault and battery contain but one count, the grand jury cannot find a true bill as to the assault, and no bill as to the battery# but must find generally, on the whole charge, as contained in the indictment.
    If on a special finding of the grand jury, as above, the defendant be tried# and found guilty of the assault,- judgment shall be arrested.
    Motion from Union district, to reverse a decision of Brevard# J. The defendant was indicted for an assault and battery. The finding of the grand jury was in these words : “ A true bill, so-far as relates to the assault, and no bill as relates to the battery.”The defendant pleaded not guilty $ and he was found guilty by the' petit jury.
    Hooker moved in the District Court in arrest of judgment, and; insisted, that as the indictment contained but one count, the grand' jury could not modify the charge, by finding part of it true, and part not true ; but should have found the bill, or ignored it in totp.-And of this opinion was Brevard, J., and arrested the judgment.
    The motion in this court was argued by Evans, Solicitor for the" Middle Circuit for the State, who contended, that the grand jury were authorized to find part, and negative part of an indictment. It must be their finding; and they have a right to modify the criminal charge so as to correspond with the truth of the facts in evidence-before them. In Selfridge’s case, tried at Boston, the grand jury found the defendant guilty of manslaughter, for which offence he-was tried, and not for murder.
    Hooker, contra.
    
    Cited 2 Haw. P. C. 210. The grand jury' must find lilla vera, or ignoramus, to the whole# and cannot find specially-, or conditionally. Yelv. 99, King v. Ford. 1 Sid. 44-< Cowp. 325. 4 Com. Dig. 385. In the case of the King v. Fieldhouse, Cowp. 325, there were two counts in the indictment# one for a riot, the other for au assault; and it was held the jury might find one lilla vera, and reject the other. Where there are' several distinct substantive charges, the jury may say that one of them is well founded, and the others not; but they cannot say sir1 as to the different parts of one and the same charge. Such & finding makes the whole void, and the party could not be legally tried upon it. Haw. B. 2, c. 25, sec. 2. We have no accurate ’report of Selfridge’s case. There might have been a count in the indictment for manslaughter.
   Curia. 29th April,

Grimke, J.

The doctrine, authorities, and reasoning relied on by the defendant’s counsel, fully support his argument. The motion of the circuit solicitor must be overruled!,

Motion rejected.  