#### STATE v. E. B. HIGH and W. I. TANNER.

(Filed 8 March, 1939.)

1. Assault and Battery § 12: Criminal Haw § 53d—

In this prosecution for felonious assault with intent to kill, the instruction of the court as to the lesser offenses embraced in the charge are held without error.

2. Assault and Battery § 8: Indictment § 22—

An indictment charging a felonious assault with intent to kill as defined in C. S., 4213, embraces as a lesser degree of the crime charged the offense of assault with a deadly weapon, and where the evidence is sufficient to sustain a verdict of the offense charged, defendant may not complain of a verdict of guilty of the lesser offense.

Appeal by defendant W. I. Tanner from Hamilton, Special Judge, at August Term, 1938, of Nash.

Affirmed.

Criminal action in which the defendants were tried under a bill of indictment charging them with felonious assault with intent to kill, as defined in C. S., 4213.

The State offered evidence tending to show that K. B. Matthews, a merchant in the city of Rocky Mount, on Saturday night, 12 March, 1938, drove to his home about midnight; that as he got out of the car and attempted to leave his garage he was assaulted with deadly weapons by two persons; that he was struck a number of times with iron pipes about the head and body; that at the time he had more than $300.00 on his person; and that Matthews identified the two defendants as being the persons who assaulted him. There was other evidence tending to indicate that the defendants were the persons who committed the assault. *245Tbe defendants offered evidence tending to contradict tbe evidence offered by tbe State as to tbe identity of tbe assailants and other evidence tending to establish an alibi for each of tbe defendants.

Tbe court in charging the jury instructed them that they could return either one of five verdicts, as they found tbe facts to be, to wit: Guilty of a felonious assault as charged in tbe bill of indictment; guilty of an assault with a deadly weapon, inflicting serious injury; guilty of an assault with a deadly weapon; guilty of a simple assault; or not guilty. In so doing tbe court properly placed tbe burden of proof upon tbe State. After tbe jury bad been out for some time it returned to tbe courtroom and its spokesman informed tbe court that tbe jury wanted to know in what degree of guilt tbe jurors could make it as light as possible. Tbe court inquired if tbe jury meant that they did not understand tbe instructions with regard to tbe various offenses. Tbe spokesman replied: “We cannot carry all of them.” Thereupon tbe court again outlined tbe offense charged and tbe lesser degrees thereof upon which a verdict of guilty might be returned, particularly outlining tbe difference between assault with a deadly weapon and a simple assault. Tbe jury returned to its room and shortly thereafter returned a verdict of guilty of assault with a deadly weapon. Judgment was pronounced thereon and tbe defendant Tanner appealed.

Attorney-General McMullan and Assistant Attorneys-General Bruton and Wettach for the State.

T. T. Thorne and W. H. Yarborough for defendant, appellant.

Pee CueiaM.

While tbe defendant in tbe case on appeal makes twelve separate assignments of error, nine of which are directed to alleged errors in tbe charge, and tbe other three of which are directed to tbe refusal of tbe court to set aside tbe verdict and to grant a new trial, be does not bring forward any one of the assignments in bis brief. He merely discusses bis contention that tbe colloquy between tbe jury and tbe court, when the jury returned to tbe courtroom for further instructions, indicates that tbe jury was confused by tbe charge and rendered a compromise verdict, and bis further contention that a verdict of guilty of an assault with a deadly weapon was not permissible under tbe bill of indictment and tbe theory upon which tbe case was tried.

Tbe exceptions to the charge are without merit. Tbe court properly instructed tbe jury as to tbe lesser offenses embraced in tbe bill of indictment. Tbe language of tbe statute and of tbe bill makes an assault with a deadly weapon an essential element of tbe major offense. It was, therefore, permissible for tbe jury to return tbe verdict which appears of record as a lesser offense of tbe crime charged. While it is true that *246tbe evidence of the State, if accepted and believed by the jury, warranted a verdict of guilty of the offense charged, this did not preclude a verdict upon a lesser offense and the defendant cannot complain that the jury did not accept the State’s evidence in full.

Bartholomew v. Parrish, 186 N. C., 81, 118 S. E., 899, relied on by the defendant, is not in point. There the jury returned a verdict which in no aspect of the case was supported by evidence, and it expressly stated in its verdict that it was a compromise. Here the verdict is supported by evidence and the defendant was adjudged guilty of a crime which is a lesser offense of the felony charged.

The trial involved largely an issue of fact. The jury rejected the defendant’s evidence tending to show an alibi and accepted the evidence tending to identify the defendant as one of the assailants. As no prejudicial or harmful error is pointed out in the brief and no error appears in the record or in the charge of the court, the judgment below must be

Affirmed.