By the Court.
Warner, J.delivering the opinion.
[1.] The defendant was indicted for an assault with intent to murder, and on the trial for that offence, before the Petit Jury, he was found guilty of an assault and battery only. The defendant relied on the Statute of Limitations, as a part of his defence; and the question is, whether the Statute protects him, according to the facts disclosed by the record. The 35th section of the 14th division of the Penal Code, declares that the in*352didment for the offence with which the defendant is charged shall be found, and filed in the proper Court, within four years next after the commission of the offencej and at no time thereafter.
[2.] Indictments for the offence of an assault and battery, are required to be found and filed in the proper Court, within two years after the commission of the offence, and at no time thereafter. Prince, 662.
In this case, the indictment accusing the defendant with having committed the offence of an assault with intent to murder, was found and filed, in the proper Court, within four years from the time the offence was alleged to have been committed; but the defendant insists, that inasmuch as the Petit Jury, on the traverse of the bill of indictment, found him guilty of an assault and battery only, and more than two years having elapsed from the time of the commission of the offence and the finding and filing the bill of indictment, that he is protected by the Statute. The answer is, that the Statute applies to the indictment on which the defendant was arraigned and tried, and not to the minor grade of offence, for which he might he found guilty on the trial for the higher grade of crime, for which the Grand Jury accused him.
The defendant was indicted for an assault with intent to murder ; was arraigned and tried on that indictment, and had all the rights and privileges incident to a trial for that grade of offence. The Statute of Limitations, in our judgment, as provided by the Penal Code, applied to the offence for which the defendant wras indicted, and not to the minor offence of assault and battery, of which he was found guilty on the traverse of that indictment.
In addition to the charge of an assault with intent to murder, the defendant is also charged in the indictment, with having beaten Smith Jones, the individual alleged to have been assaulted; so that there is a sufficient allegation in the indictment of a battery, to authorize the verdict of the Jury for the offence of an assault and battery.
Let the judgment of the Court below be affirmed.