State v. Howell

ROBERT L. FLOYD, Circuit Judge.

After reading the record on appeal, the briefs of respective counsel, and oral argument, this court is of the opinion that the information should have been quashed and the appellant discharged.

Assault and battery is not a lesser offense under an information charging aggravated assault. See Hall v. State, Okla. 1957, 309 P. 2d 1096, overruling a long line of decisions in Oklahoma to the contrary, including Smith v. State, 152 P. 2d 279, relied on by appellee.

The language relied upon by appellee used by our Supreme Court in McCormick v. State, 16 So. 2d 49, is dicta, and did not determine the point involved herein.

The case of Russell v. State, Ala. 1935, 165 So. 255, relied upon by appellee, is not analogous.

It is ordered and adjudged that the judgment of the trial court is reversed, and the cause remanded with instructions to quash the information.