—Simply to- find the prisoner
guilty of assault, was to find him guilty of a criminal intent, simply to find him not guilty of a criminal assault was to acquit him. The difficulty is to say what the- jury meant by their verdict, inconsistent on its face. If they meant to acquit, then it was error not to entertain the verdict, and to direct the jury again to retire. If it had been explained to them that, on this criminal prosecution, there could be no assault without an intent to injure, then they might have stated' what they intended (3 Green. Ev. 361); but this was- not done, so far as appears, as they distinctly found that there was no criminal assault and no intent to injure. I am, on the whole, of the opinion that by the words “ guilty of assault,” they must have meant simply „ that the defendant, as he himself stated, took hold of the pros ecutrix. I think that they must have believed that any such taking hold of another person, without regard to the intent, was an assault. There is much in this case which renders this view probable, as is shown, in the preceding opinion of my brother Bocees. The evidence fully justified the conclusion that- there *538was no assault; and if the jury so found, their verdict appears to be just and proper.
Although the matter is not free from doubt, I conclude that the verdict first rendered was practically a verdict of acquittal, ■ and I concur in the foregoing opinion.
Boaedman, J., concurred in the result.