Varnum v. State

1. The defendant was convicted of an assault with intent to murder. The jury were instructed on the law of that offense and on the law of assault and battery, but the judge (as shown by his order approving the grounds of the motion for new trial) inadvertently failed to instruct the jury that if they found the defendant guilty of an assault with intent to murder they could recommend if they saw fit that he be punished as for a misdemeanor. The failure to so charge was error, but not reversible error since it appears from the record that the judge on his own motion punished the defendant as…