dissenting. As I cannot concur in the conclusion reached in this case, I propose to state briefly the grounds of my dissent. I take the rule to be well settled, that a party cannot be convicted of an offence different from that with which he is charged, unless the offence of which he is convicted is of the same nature, but of a lesser degree, than that with which he is charged, and the one can be said to be included in the other. For example..under an indictment for murder, one may be convicted of manslaughter, or under an indictment for assault and battery one may be convicted of a simple assault. But I do not understand that the converse of this rule is true, and I do not think any case can be found, where, under an indictment for the lesser offence a conviction for the greater, even where they are of the same nature, and differ only in degree, has been sustained.
Applying this rule to the present case, it-is clear to my mind that this conviction cannot be sustained. The indictment charges an assault with intent to kill, and contains no charge that any battery was committed; and yet the verdict finds the defendant guilty ;‘of an aggravated assault and battery.” In other words, the jury have undertaken to convict the defendant of a charge *459not made against him, of an offence which the indictment did not call upon him to answer — have passed upon an issue not made in the pleading (the indictment) — and which, therefore, they had no authority to try. Now, while it might have been entirely competent for the jury, under this indictment for assault with intent to kill, a well defined common law offence, to have convicted the defendant of a simple assault (as long as the court had jurisdiction of that offence), or even of assault of a high and aggravated nature, inasmuch as the conclusion contra formam statuti is found in the indictment; yet I see no warrant whatever for saying that a conviction, either for assault and battery, or for assault and battery of a high and aggravated nature, can be sustained. For while it is quite true that assaults and batteries are offences of the same nature, and differ only in degree, yet, while every battery necessarily includes an assault, 'it is not true that every assault necessarily includes a battery. So, while a charge of assault with intent to kill may necessarily include a charge of simple assault, or, perhaps, an assault of a high and aggravated nature, yet it certainly does not include a charge of battery.
Ever since the case of the State v. Wilburne (2 Brev., 296), the difference between a charge of assault and a charge of assault and battery has been recognized. In that case it was held that, where an indictment in a single count charged the offence of assault and battery, and the grand jury found a true bill as to the assault and no bill as to the battery, a conviction for the assault could not be sustained, under the rule which requires the grand jury (in this respect different from the petit jury) to find generally on the whole charge contained in the indictment, and cannot find a part of the charge true and a part not true. But if, as that case recognizes, the indictment had contained two counts — one charging the offence of assault and battery, and the second charging the assault «simply — then it would have been entirely competent for the grand jury to have found “no bill” as to the first count and “true bill” as to the second. In State v. Raines, 3 McCord, 533, the charge was for killing a slave, the indictment containing two counts — one for the murder of a slave, under the first section of the act of 1821, and the other for killing a slave “in sudden heat and passion,” under the second sec*460tion of that act. The verdict was “guilty of manslaughter,” and the court held that no judgment could be pronounced upon such verdict, and hence the judgment should be arrested, because the defendant had been convicted of an offence with which he was not charged in the indictment.
In the State v. Gaffney (Rice, 434), the prisoner was indicted for the murder of a slave, under the act of 1821, and the verdict was “not guilty of murder, but guilty killing on sudden heat and passion.” Amotion in arrest of judgment was refused upon the ground that a charge of the murder of a slave, under the act of 1821, includes within it the lesser offence of killing “in sudden heat and passion,” under the second section of that act, to the same extent and for the same reason that murder, at common law, includes the lesser offence of manslaughter. This is a plain recognition of the rule as above stated, and that is all really that the case decides. It is true that Earle, J., in delivering the opinion of the court, does make some remarks, indicating that he thought the conviction in the case of Raines, supra, might have been sustained ; but he docs not say anything which would even imply that he thought a conviction for an offence higher in degree than that charged, though of the same nature, could be sustained. On the contrary, his whole argument proceeds upon the very same rule as that stated in the outset of this opinion, viz., that a conviction for an offence not specifically stated in the indictment, can only be sustained where it is of the same nature, and differs only in degree, and where it is necessarily included in the charge as laid.
It is, however, contended that the words “and battery” in the verdict may be rejected as surplusage, so that it may be treated simply as a verdict of “guilty of an aggravated assault;” and it only remains to consider the authorities cited to sustain that proposition. The first case, in point of time, which is cited is Patterson v. United States (2 Wheat., 221), where Mr. Justice Washington lays down the rule in these words (italics mine): “A verdict is bad, if it varies from the issue in a substantial matter, or if it find only a part of that which is in issue;” and, after stating the reason of the rule, he adds (italics still mine): “It is true, that if the jury find the issue and something more, the lat*461ter part of the finding will be rejected as surplusage; but this rule does not apply to a case where the facts found in the verdict are substantially variant from those which are in issue.”
Now, in the present case the issue which the jury were called upon to try was, whether the defendant was guilty of the charge as laid in the indictment, and as that charge was plainly an assault with intent to kill, which did not necessarily include the charge of any battery, it seems to me plain that the verdict as found “varies from the issue in a substantial matter,” and is therefore, under the case cited, bad; and that the additional finding that the defendant is guilty of a battery, as well as of the charge laid, cannot be rejected as surplusage, because the fact thus found is “substantially variant from those which are in issue.” The rule thus laid down by Washington, J., could very well be applied where, as in Massey v. Duren, 7 S. C., 310, a case likewise cited by the solicitor, the additional matter incorporated in the verdict was not variant from the issue in any substantial manner. There the action was “trespass to try titles,” and the jury after finding for the defendant the land in dispute, added to their verdict words purporting to describe the land thus found for the defendant. That was a plain case of surplusage, and the rule was properly applied.
In Weikman v. City Council (2 Speer, 571), this matter has been discussed, but it seems to me that the decision in that case, so far from supporting the view contended for,- is directly antagonistic to it. In that case the action was to recover the penalty imposed by a city ordinance on retail grocers for keeping spirituous liquors in their shops without a license. The verdict was in these words: “We find the defendant guilty of having liquor in the back room, and assess the fine of fifty dollars.” It was contended for the plaintiff either that all after the word guilty might be rejected as surplusage, or that to the words “guilty of having liquor in' the back room” might be appended technical words — modo et forma — so that the verdict might read guilty of having liquor in the back room in the manner and form alleged in the declaration. But the court held otherwise, saying : “It is only where a verdict, before certain and valid, according to a fair construction, has been cumbered by the addition of useless mat*462ter, not qualifying the previous meaning, that the addition can be rejected as surplusage.” And as to the proposition to supplement the verdict by the addition of the technical words, modo et forma, the rule was laid down as follows : “In general verdicts modo et forma, being merely technical words, may be supplied; for the inquiry of the jury being properly confined to the facts which are comprised in the issue, it must be intended that whatever facts may be found, are according to the allegations made, unless a different intention can be inferred from the verdict” (italics mine).
Now, surely it cannot be said that the additional words — “and battery”^-which it is proposed to reject as surplusage, are merely “useless matter, not qualifying the previous meaning,” but, on the contrary, they are material and conclusively show that the jury intended to convict the defendant of a charge not laid in the indictment. To reject these words as surplusage would be a reformation of the verdict by the court to make it express a different intention from that plainly expressed by the jury.
As to the other re-formation of the verdict, by adding the technical words modo et forma, it is quite clear if this were done, that the intention of the jury would be entirely defeated, and their verdict would be made to express an intention directly contrary to that which they have plainly expressed. For if the verdict should be read as “guilty in manner and form as alleged in the indictment,” that would necessarily mean guilty of assault with intent to kill, whereas the verdict, as written by the jury, plainly shows that they did not intend to find the defendant guilty of assault with intent to kill.
The case of State v. Izard (14 Rich., 209), was also referred to in the argument, but as it does not seem to me to be in point, it will be only necessary to make a brief statement of it without comment. Under an indictment for assault and battery, the jury found the following verdict: “We find the defendants guilty of an assault, but not with the intention of injuring the parties, and not of the battery.” On appeal the verdict was set aside and a new trial ordered, because it was doubtful what the jury really intended. There was but little discussion, and no principles laid down applicable to the present inquiry.
*463It seems to me, after a very careful examination, that there is no view upon which the verdict can be regarded as sufficient to warrant any judgment, and hence that the Circuit Judge erred in refusing the motion to arrest the judgment. It seems to me plain that the defendant, under an indictment for one offence has been convicted of another not included in the charge as laid, and this is a violation of one of the fundamental rules of criminal pleading and practice.
Judgment affirmed.