Fleming v. State , 107 Ala. 11 ( 1894 )

COLEMAN, J.

The defendant was indicted for a felonious assault, and convicted of an assault and battery with a weapon. The only exception arises from the refusal of the court, to-charge the jury as requested by the defendant, and overruling a motion in arrest of judgment.

The second and third charges requested, demanded an entire acquittal, unless the jury were satisfied beyond a reasonable doubt that the defendant was guilty of a felonious assault. The lesser charge was included in the greater, and although the jury may not have believed the defendant was guilty of the specific intent to murder, the indictment authorized a conviction of an assault and battery with a weapon. This has been often decided.

The fourth charge requested is faulty in that it predicates the right to an acquittal, if the jury have any doubt of his guilt. The law requires the jury to be satisfied beyond a reasonable doubt, but does not demand an acquittal if there is any doubt.

The motion in arrest of judgment is without merit. The defendant was indicted for a felony, and could only be tried in the circuit court. The act of February 23, 1881, (Acts 1880-81, p. 295), confers jurisdiction upon the county court of Wilcox county to try misdemeanors and provides for tlie transfer and return to that court of indictments for misdemeanors. The act has no operation upon indictments for felonies.

Affirmed.