dissenting.
I would affirm the conviction. The jury was properly instructed as to what constitutes malicious wounding, unlawful wounding and assault and battery. The majority correctly holds “it is clear” that the jury intended to acquit Bacci of malicious wounding and to convict him of unlawful wounding. Under such circumstances we should not nullify the jury’s verdict finding the defendant guilty of unlawful wounding because of its failure to add thereto “with intent to maim, disfigure, disable or kill”. Our decisions in Banner and Lane should be modified to avoid such a result where, as in the instant case, there is no question as to the sufficiency of the evidence to convict, the correctness of the instructions given by the court, the offense which the jury found was committed and the offense which the jury convicted the defendant of committing.