As I understand the prisoner’s different requests to charge, they were requests to charge on the facts ; and were properly refused. And as to the first one, where the judge said, “ the evidence was sufficient,” it is perfectly apparent from the connection that he meant merely sufficient to go to the jury.
But there are inherent in the ease much more serious difficulties in the way of this conviction of a felony. The third count of the indictment, to make it in itself good, should have after the word “ kick,” the words, “ with such force as was likely to produce death.” And then a general verdict of “ guilty of an assault and battery, with intent to kill, as charged in the third count of the indictment,” would probably.be good. And it is worth the while of every district-attorney to observe thisqDoint; and in framing his indictments for cases of assault and battery, so outrageous as plainly was that in this case, to *135insert a count on which a conviction that will send to the state prison may be had, without callijig on the jury to presume, or find from circumstances, hardly warranting such finding, that some unknown deadly weapon was used.
The offence is strictly a statute offence. (2 R. S. 665, § 36.) “ Every person, who shall be convicted of any assault and battery upon another, by means of any deadly weapon, or by such other means or force as was likely to produce death, with intent to kill, &c., shall be punished,” &c. And no one can doubt that were a strong man to strike, with but his fist, a heavy blow on the head of a mere child, thereby inflicting severe injury and intense suffering, whether causing or not causing imminent danger to its life, he would clearly be within both the letter and the spirit of committing an assault and battery, “by such force as was likely to produce death,” and eminently worthy of the state prison, for the longest term the law names.
Still, unless the indictment were framed to meet the case, there could be no such conviction. And merely charging “ an intent to kill,” without setting forth some one of the means which the statute names, will not warrant a conviction of any offence higher than an assault and battery. And in this light, I am unable to see that the verdict is really one finding any grade of crime above an assault and battery ; the words, “ with intent to kill,” having added to them no reference to the indictment, whereby the finding could be eked out with the statute requisites, are merely nugatory. The true and proper way oi finding a verdict, in a case properly charging the statute intent, would be, “ that the prisoner was guilty of the assault and battery with a deadly weapon, with intent to kill;” or, “ by such force as was likely to produce death, with intent to kill,” the person assaulted, &c. And the very least that would make a good verdict of guilty of the higher crime would be, “ guilty of an assault and battery, with intent to kill, as charged in the indictment.”
Viewing this verdict, then, as one of guilty of assault and battery, I see no course to be taken with it, but that sen*136tence be passed for that offence. There has been no error for which a new trial should be had, nor is there any conviction of a felony. But there is a perfectly valid conviction of the lesser offence.