Foley v. State

The appellant was indicted for an assault and battery with intent to murder; was tried by a jury, and convicted of an assault and battery, without the intent, and fined 75 dollars; a new trial was refused, and judgment rendered on the verdict.'

On the trial, the Circuit Court instructed the jury that, if the evidence justified it, they might acquit the defendant of the intent to murder, and find him guilty of an assault and battery. This charge was excepted to, and the giving of it is now assigned for error.

In the case of The State v. Kennedy, 7 Blackf. 233, it was held that upon an indictment…