(dissenting).
I am unable to go along with the decision of my associates, notwithstanding I believe the result they reach is not greatly out of harmony with the result the jury itself desired to arrive at. In my view we can do no more than reverse and remand for a new trial.
I think the indictment sufficiently charged the crime of assault with intent to commit murder as that crime is defined in § 276 of the Criminal Code. I think, also, that the verdict actually found was one which might properly have been returned under the indictment and in conformity with the statute. Further, I agree that the crime denounced by the statute of unlawfully striking, beating, or wounding another is an included offense of which, under an indictment framed as this one was, a verdict of guilty might properly be returned.
Here the jury were confined by the judge to one of three courses; under the instructions they might find appellant either not guilty, or guilty of assault with intent to commit murder or of assault with a dangerous or deadly weapon — both felonies heavily punishable under the statute. Appellant had requested an instruction permitting the return of a verdict for one or the other of the lesser offenses defined by the statute, and he excepted to the court’s failure so to instruct. During their deliberations the jury asked the judge for permission to return a verdict other than one of those permitted by the instructions; and it is clear from the record that they desired to find appellant guilty of a lesser included offense. The judge, however, declined to permit them to depart from the forms of ver. diet submitted.
This was clear error. There was evidence upon which appellant might properly have been found guilty of an offense no more serious than that of unlawfully striking and wounding another. Had the jury been afforded the leeway they asked and to which they were entitled it is apparent that they would have returned a verdict for a minor included offense, although a finding of simple assault would hardly have been warranted on the evidence.
The sentence imposed was imprisonment for five years, whereas the punishment for unlawfully striking and wounding could not exceed six months. Thus, from the circumstances of the trial, prejudice is manifest.
For the reasons given I think the judgment should be reversed and the cause remanded for further proceedings. The hardship of the case should not hurry us into laying down bad law. It would be enough on remand to suggest that the prosecution accept and the court approve a plea of guilty to the included misdemeanor.