Indictment containing two counts. The first count charges that the defendant "an assault did make, and him, the said Warren Spaulding, did beat, bruise and ill treat, with a dangerous weapon, to wit, a knife which said” [defendant] "then and there held, with intent him, the said Warren Spaulding, to murder, maim and kill, against the peace, ”&c. The *77second count charges assault and battery. The verdict was : "Guilty of assault with intent to kill.”
I. It is objected in arrest that the second count does not support the verdict, and that no judgment can be rendered upon it under that count. As the case now stands this objection is well taken, a nolle prosequi of the intent to kill not having been entered.
II. It is objected that judgment cannot be entered on the verdict under the first count, because it charges three distinct substantive crimes. If this were so, and the verdict had been general, that is, guilty of the indictment, the objection would have been well taken. Commonwealth v. Symonds, 2 Mass. 163; State v. Nelson, 8 N. H. 163; People v. Wright, 9 Wend. 193; Commonwealth v. Holmes, 119 Mass. 194; State v. Smith, 61 Maine, 386.
A few cases are cited as holding that duplicity is cured, even by a general verdict of guilty. They go upon the authority of Commonwealth v. Tuck, 20 Pick. 361, now disregarded in Massachusetts, if that be its doctrine. Among these are State v. Palmer, 35 Maine, 13; State v. Dolan, 69 Maine, 573, where the point is not given much consideration. Duplicity is cured however by a special verdict of guilty of one offense only. State v. Payson, 37 Maine, 361.
As remotely bearing upon the subject see State v. Burke, 38 Maine, 574; State v. Hadlock, 43 Maine, 282; State v. Tibbetts, 86 Maine, 189.
A distinction must be made between charging several substantive offenses in the same count, and charging several acts that, collectively, constitute one offense, but separately constitute several lesser offenses that are included in the greater offense, as assault, assault with intent to kill and intent to murder. In the former case the count Avould be defective for duplicity, a cause for demurrer, or for arresting judgment on a general verdict of guilty as it might be doubtful what sentence should be imposed. Nor should inconsistent acts be charged, either of Avhich would constitute the offense. State v. Haskell, 76 Maine, 399.
*78If, however, the defendant waives his demurrer and goes to trial upon a count bad for duplicity, and the verdict be special, as the statute provides it may be, R. S., c. 131, § 4, the defect should be held cured. What good reason can be given why it should not be? The defendant stands convicted of a single offense upon a sufficient indictment therefor. Why should he complain of other charges of which he is acquitted? What prejudice have they worked him? We are aware of the dictum in State v. Smith, 61 Maine, 386. The considerations there were on demurrer, and the defendant was threatened with trial upon double charges in the same count. Pie had i’easun to object. His right of trial upon a single issue was likely to be denied him. But where a defendant waives the objection by going to trial, and the trial is so conducted that he is found guilty of but one offense, the matter has worked itself clear. The penalty to be imposed becomes certain, and he can be subjected to no greater penalty than he would have been had the charge been single.
But it is urged in the ease at bar that the verdict is responsive to only one charge in the first count and silent as to the others, and, therefore, not such a verdict as authorized by our statute and upon which no judgment can be x’endered. But the verdict, in effect, is responsive to the whole indictment, as its legal effect is an acquittal of the part not specifically responded to. So says the court in State v. Pay son, supra. "When a person indicted for an offense shall, by verdict of a jury be acquitted of a part of it, and found guilty of the residue, he is, by the provisions of the statute [now R. S., c. 131, § 4], to be considered as convicted of the offense, if any, which is substantially charged by the residue, of which he is found guilty. The verdict, in this case, as presented, does not contain any formal words of acquittal of a part of the offense ; yet, such is its legal effect. For when the verdict of a jury finds the accused guilty of a certain part of the offense only, the effect is an acquittal of everything else charged. The legal effect of the verdict, and not the language used in it, must have been intended by the provisions of the statute, for such verdicts are in the customary *79course of business, presented orally and not in writing.” In that case, the indictment was said to charge two substantive offenses in one couut, and the verdict was guilty of one offense and silent as to the residue, and a motion in arrest of judgment for duplicity was overruled. The opinion was by Chief Justice Shepley. The weight of authority sustains the same doctrine. They are cited in Bishop’s New Criminal Law, § 1006. State v. Cofer, 68 Mo. 120; Dickinson v. State, 70 Ind. 247; People v. Dowling, 84 N. Y. 478; Green v. State. 17 Fla. 669; State v. Gannon, 11 Mo. Ap. 502; Foster v. State, 88 Ala. 182; State v. Thompson, 95 N. C. 596; Stale v. McNaught, 36 Kan. 624; Nutt v. State, 63 Ala. 180; Sylvester v. State, 72 Ala. 201; Cheek v. State, 4 Tex. Ap. 444; State v. Sorrell, 98 N. C. 738; Thomas v. People, 113 Ill. 531; Kirk v. Commonwealth, 9 Leigh, 627; Weinzorpflin v. State, 7 Blackf. 186; Brooks v. State, 3 Hump. 25; Morris v. State, 8 Sm. & M. 762; Chambers v. People, 4 Scam. 351; Stoltz v. People, 4 Scam. 168; Brennan v. People, 15 Ill. 511, 517; State v. Twedy, 11 Iowa, 350; State v. Lessing, 16 Minn. 75; Commonwealth v. Bennett, 2 Va. Cas. 235; State v. Hill, 30 Wis. 416; State v. Belden, 33 Wis. 120.
Contra, United States v. Keen, 1 McLean, 429; Jones v. State, 13 Tex. 168; State v. Smith, 5 Day, 175.
We are aware of the dictum in State v. Smith, supra, 61 Maine, 386, that a special verdict of guilty of one of two offenses charged in the same count cannot cure the duplicity; but no authorities are cited, and the earlier case of State v. Payson, supra, ivas unnoticed. That case holds squarely the reverse, and is sustained by the great weight of authority and has never been considered to have been overruled by our own courts.
In case of a new trial, the Wisconsin authorities limit the renewed jeopardy to the offense of which conviction was had. State v. Belden, 33 Wis. 120; State v. Hill, 30 Wis. 416. Others hold that a new trial opens the entire case. Bohanan v. State, 18 Neb. 57; Commonwealth v. Arnold, 83 Ken. 1; Briggs v. Commonwealth, 82 Va. 554; Patterson v. State, 70 Ind. 341. Bishop recommends that the order for new trial state the conditions in this respect.
*80But it is said the indictment is not open to the charge of duplicity in the first count. Let us see. It charges that the defendant, with force and arms, in and upon one Warren Spaulding an assault did make, and him, the said Warren Spaulding, did beat, bruise and ill treat with a dangerous weapon, to wit, with a knife which the defendant then and there held with intent him, the said Warren Spaulding, to murder, maim, and kill, contra pacein, &c.
More than one offense must be charged. A defective charge is no charge, and may be rejected as surplusage. State v. Palmer, 35 Maine, 9; State v. Haskell, 76 Maine, 399; State v. Bennett, 79 Maine, 55; State v. Dunlap, 81 Maine, 389; State v. Dodge, 81 Maine, 391.
The charge of assault with intent to murder is insufficient, and therefore is no charge, and surplusage. To be good for that offense it must charge malice. That is a necessary element of the crime. State v. Neal, 37 Maine, 468 ; and that which must be pi’oved, must be averred directly and not by way of argument, implication or inference. State v. McDonough, 84 Maine, 489; State v. Paul, 69 Maine, 215. But had this charge been sufficient, the count wopld not have been double by reason of charging assault, or assault with intent to kill, as they are lesser crimes included within the greater. State v. Waters, 39 Maine, 54; State v. Cobb, 71 Maine, 206.
The charge of assault with intent to maim contains all the averments of .the indictment against Palmer, that was held sufficient. State v. Palmer, supra. Hence here is one substantive offense.
The charge of assault with intent to kill as distinguished from assault with intent to murder, was unknown to the common law, because it was thought intent implied malice that was murder. It is made by our statute, and by the statutes of many other states, a substantive offense. State v. Waters, supra. It is an offense that may be committed without malice. Should the intent prevail, the crime would be manslaughter. And although a felony, the failure to charge-the acts that constitute the crime to have been feloniously done, is not fatal, although *81unwise, inasmuch as R. S., c. 131, § 12, provides that no indictment shall be quashed or judgment thereon arrested for the omission of the word "feloniously,” unless it prejudice the defendant.
Many authorities hold that where the indictment charges a felony, a conviction for misdemeanor cannot be supported by proof of a felony. Different rights are sometimes accorded on trials of these offenses. But our statutes obviate all substantial differences of procedure in both classes of trials, except trials for some offenses formerly capital, and therefore the omission to charge the felony to have been feloniously done can work no prejudice to the defendant, inasmuch as the acts charged in the indictment of themselves sufficiently characterize the offense.
The first count, therefore, sufficiently charges two substantive crimes, viz., assault with intent to kill, and assault with intent to maim, whether the averment of the use of a dangerous weapon be considered a sufficient allegation of "being armed with a dangerous weapon ” or Dot.
The defendant stands convicted of assault with intent to kill, and acquitted of all else charged against him in the indictment.
The evidence excluded was clearly inadmissible.
Exceptions overruled. Judgment on the verdict.