Russell v. State , 231 Ala. 297 ( 1935 )

To the Court of Appeals of Alabama:

Answering your question above certified, we are of opinion the verdict set out therein is valid and sufficient.

An indictment for assault with intent to murder includes the lesser offense of assault and battery. Jones v. State, 79 Ala. 23.

The verdict will be referred to the indictment, without adding "as charged in the indictment," or other like recital. Blount et al. v. State, 49 Ala. 381; McDonald v. State,118 Ala. 672, 23 So. 637; Gulledge v. State, 230 Ala. 206,160 So. 556.

Such verdict responds to all the issues presented, operating an acquittal of the higher and a conviction of the lower offense charged in the indictment. Identifying the lower offense by the usual designation "assault and battery" and affixing a punishment suited to such offense is sufficient.

This is a general and not a special verdict within the rules requiring special verdicts to set out the findings of fact, etc. 16 C.J. p. 1110; Id., p. 1099; 64 C.J. pp. 1053-54; Id., p. 1065.

All the Justices concur, except ANDERSON, C. J., not sitting.