I dissent on the theory that the crime of assault and battery is included in the offense charged in the information in this case. I think the case of People v. McDaniels, 137 Cal. 192,69 P. 1006, 59 L.R.A. 578, 92 Am. St. Rep. 81, and State v. Blevins,134 Ala. 113, *Page 475 32 So. 637, 92 Am. St. Rep. 22, and numerous other cases in harmony with them lay down the rule applicable to the instant case.
MEMORANDUM DECISIONS