
    The State vs. Valentine.
    Where the defendant was indicted for maliciously stabbing, and the jury found the defendant “not guilty of the malicious stabbing, but guilty of an assault and battery:” Held, that no judgment could be pronounced against the defendant.
    The act of 1832, ch. 22, does not embrace cases where a felony is charged, but only such cases as charge an assault with an intent to commit a felony, when the defendant is acquitted of the felonious intent, but found guilty of an assault or an assault and battery.
    The defendant in this case was indicted for maliciously stabbing. Upon the trial, the jury found the defendant “not guilty of the malicious stabbing, but guilty of an assault and battery.” The court discharged the defendant, refusing to pronounce judgment on said verdict. Prom which decision of the judge the Attorney General for the State prosecutes this writ of error.
    
      A. B. Bradford, Attorney General, for the State.
    Whether the court should have pronounced judgment against the defendant upon this verdict depends upon the act of 1S32, ch. 22, see pamphlet Acts, 35: This is an act giving the circuit court jurisdiction of misdemeanors; and it seems that no reasonable inference can he drawn from the words or the spirit of it, but that the circuit court is bound to proceed to judgment against the defendant on the conviction herein.
    
      Harris and Brown, for defendant in error.
    The statute of 1832, ch. 22, did not authorize the finding of the jury, and no judgment could be entered upon the verdict. That statute provides, that where an indictment shall be found for an assault with “intent to kill, or commit any other felony,” that the jury may acquit of the felony and find the defendant guilty of the assault and battery. In this case the indictment is not for an assault with intent to commit a felony, but for the actual commission of the felony. The indictment does not charge the assault with the intent to commit a felony as constituting the crime, but charges the facts which constitute the crime itself. It does’ not therefore fall within the provisions of the statute, and the court did right in arresting the judgment.
   Green, J.

delivéred the opinion of the court.

There was no error in this judgment. The act of 1832, ch. 22, does not authorize such, a verdict as that pronounced in this case. That act provides “that where a person shall 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, as charged, of the intent to commit such felony, to find him guilty of an assault or of an assault and battery, on which judgment shall be pronounced.”

The indictment in this case is for a felony charged tp have been committed, and is not for an assault with intent to commit a felony. It does not therefore fall within the provisions of this act, for clearly it intended to embrace only such cases as, from the facts charged, would amount only to an assault or an assault and battery, but which, by reason of the felonious intent with which the assaulfmay be committed, becomes more highly criminal. Upon an indictment for murder or manslaughter, a verdict of not guilty, but guilty of an assault and battery, would be as well justified under this act as such finding in a case like this. Let the judgment be affirmed.

Judgment affirmed.  