Stewart v. State
Ohio Supreme Court
This was a writ of error, adjourned here for decision from the county of G-allia. The case was this: 'Stewart was indicted for an assault with in“ient to kill and murder.
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This was a writ of error, adjourned here for decision from the county of G-allia. The case was this: 'Stewart was indicted for an assault with in“ient to kill and murder. Upon the trial, his counsel moved the court to instruct the jury, “ that if they were of opinion that the facts of the case would not warrant them in finding the defendant! guilty of an assault with intent to kill and murder, as charged in' the indictment, yet that it was competent and lawful for the jury to find the defendant guilty of assault and battery alone.” This charge the court refused to give. The prosecuting…
1Opinion of the Court
Judge Lane
delivered the opinion in the court.
It is assigned for error, that the court refused to charge the jury, that in an indictment for an assault with án intent to kill, they might find him guilty of simple assault and battery, without any such intention ; and' in charging that in this case, if the jury found him guilty at all, it must be guilty of the whole accusation.
A doubt has been raised, whether the bill of exceptions is taken to the refusal to charge, as well as to the actual charge; but a majority of the court believe it is, although somewhat informal, sufficiently applicable to…
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