
    Johnson v. The State.
    Argued October 18, —
    Decided November 10, 1904.
   Candler, J.

1. The accused was indicted for assault with intent to murder; hut on the trial of the case, after the evidence was all in and concluded, the solicitor-general announced in open court and in the presence of the jury that the State would not insist upon a conviction for a higher offense than that of shooting at another. The court so instructed the jury, and directed them that in the event they should find the accused guilty they should find him guilty of shooting at another. The verdict rendered was: “We, the jury, find the defendant guilty, and recommend mercy.” This verdict was received without objection or motion that it be amended. Held, that the statement made to the court and jury by the solicitor-general was tantamount to an abandonment of the charge of assault with intent to murder, the higher offense, and an election to rely upon the minor charge in the bill of indictment, that of shooting at another; and this action being approved by the court and acted upon by counsel for the accused, the legal effect of the verdict was to convict the accused oi the latter offense. The court having so construed the verdict, and no objection having been made to its reception and to his so treating it at the time of its rendition, the fact that the verdict did not specify the offense of which the accused was convicted will not work the grant of a new trial. •

2. In the light of the ruling announced in the preceding headnote, none of the grounds of the motion for a new trial disclose any error requiring a reversal of the judgment of the court below.

Judgment affirmed.

All the Justices concur.

Indictment for assault with intent to murder. Before Judge-Freeman. Carroll superior court. June 11, 1904

W. F. Brown, for plaintiff in error.

H. A. Hall, solicitor-general, contra.  