
    Stephen Stewart v. The State of Ohio.
    Indictment for assault with, intent to kill, party may be convicted of assault and battery, or assault alone.
    This was a writ of error, adjourned here for decision from the county of G-allia.
    The case was this: 'Stewart was indicted for an assault with in“ient to kill and murder. Upon the trial, his counsel moved the court to instruct the jury, “ that if they were of opinion that the facts of the case would not warrant them in finding the defendant! guilty of an assault with intent to kill and murder, as charged in' the indictment, yet that it was competent and lawful for the jury to find the defendant guilty of assault and battery alone.” This charge the court refused to give.
    The prosecuting attorney asked the court to instruct the jury, “ that if they did not find the defendant guilty of the assault with.' intent to kill and murder, they must find him not guilty of the whole charge;” and this instruction the court gave to the jury; to all which, the defendant excepted.'
    The indictment .contained but one count. The jury found the defendant guilty of the assault with intent to murder, and he was sentenced to three years’ imprisonment in the penitentiary, to reverse which, this writ of error was brought.
    ^Several errors were assigned; but the opinion of the court is confined to the bill of exceptions.
    Murphy and Allen, for plaintiff in error.
   Judge Lane

delivered the opinion in the court.

It is assigned for error, that the court refused to charge the jury, that in an indictment for an assault with án intent to kill, they might find him guilty of simple assault and battery, without any such intention ; and' in charging that in this case, if the jury found him guilty at all, it must be guilty of the whole accusation.

A doubt has been raised, whether the bill of exceptions is taken to the refusal to charge, as well as to the actual charge; but a majority of the court believe it is, although somewhat informal, sufficiently applicable to both.

Ve are all of opinion that the charge was erroneous. That a jury may find a verdict of guilty for part, and acquit for the residue ; that where an accusation for a crime of a higher nature-includes an offense of a lower degree, the jury may acquit him for the graver offense, and return him guilty of the least atrocious. The cases and examples are collected in 1 Ch. Cr. Law, 638, and there is no foundation in this country for the distinction made in England on this point, between felonies and misdemeanors;, for here, an indictment for the higher offense rather adds to than, subtracts from his privileges.

Still, we can not say that the defendant might not be prejudiced by his instruction, and therefore the judgment must be reversed.  