
    Edward E. Estes, plaintiff in error, vs. The State of Georgia, defendant in error.
    Where an indictment contains two separate counts for offenses which may be properly joined therein, the one for a higher grade, and the other for a lower grade, if of the same nature, connected with, and growing out of the same transaction, though the punishment for each grade may be different, ' and upon the trial the jury find a general verdict of guilty, the legal intendment of such a verdict is to find the defendant guilty of the highest grade charged.
    Criminal law. Indictment. Before Judge McCutchen. Whitfield Superior Court. April Term, 1875.
    Reported in the decision.
    Johnson & McCamy, for plaintiff in error.
    A. T. Hackett, solicitor general, for the state.
   Warner, Chief Justice.

The defendant was indicted for the offense of an “assault with intent to murder,” and on the trial thereof the jury returned the following verdict: “We, the jury, find the defendant guilty, and recommend him to the mercy of the court.” There were .two counts in the indictment. The first count charged the defendant with the offense of an “assault with intent to murder,” by shooting a loaded pistol at one Henry Williams wilfully, feloniously, and of his malice aforethought, with intent him the said Henry Williams to Mil and murder. The second count in the indictment charged the defendant with the offense of “shooting at another.” The defendant made a motion in arrest of judgment, on the ground that the indictment on which the defendant was tried and convicted contained, in separate counts, two separate and distinct offenses, requiring different punishments, and the jury having found a verdict of guilty generally, it is impossible to tell of what they found him guilty. On hearing and considering the motion, the cou'rt overruled it, and the defendant excepted.

This is not an open question in this court. Where an indictment contains two separate counts for offenses which may be properly joined therein, the one for a higher grade, and the other for a lower grade of an offense of the same nature, connected with, and growing out of the same transaction, though the punishment for each grade of the offense may be different, and upon the trial the jury find a general verdict of guilty, the legal intendment of such a verdict is to find the defendant guilty of the highest grade of the offense charged in the indictment: Bullock vs. The State, 10th Georgia Reports, 47; Dean vs. The State, 43d Ibid., 218.

Let the judgment of the court below be affirmed.  