#### Charles Howard *v.*The State of Ohio.

Under an indictment containing a count for robbery, and a count for assault with intent to commit robbery, the defendant may be acquitted of the higher degrees of the offenses charged, and convicted of assault and battery, or of assault alone; and a refusal of the court so to instruct the jury is error, for which the judgment may be reversed. *Stewart*v. *The State,*5 Ohio, followed and approved.

Error to the Court of Common Pleas of Hamilton county.

At the June term, 1874, of the court, the plaintiff in error was tried and convicted of an assault with intent to commit a robbery upon the person of John Hughes, and sentenced to imprisonment in the penitentiary for three years, and to pay the costs of prosecution.

The indictment upon which the trial and conviction were had, was found at the same term, and contained two counts — the first charging the plaintiff in error with robbery, under section 15 of the crimes act, and the second with an assault with intent to commit robbery, under section 17 of the same act. The jury, by their verdict, acquitted the plaintiff’ in error of the robbery, and found him guilty of the assault with intent to commit robbery.

It appears from the bill of exceptions taken and signed in the case, that on the trial counsel for plaintiff in error requested the court to charge the jury, “that if they find the defendant, Charles Howard, not guilty of robbery, as charged in the first count of the indictment, nor of assault with intent to rob, as charged in the second count of the indictment, then the jury will be warranted in finding him guilty, under said indictment, of assault and battery, or of assault, if the facts in the case, in their opinion, warrant the same.” Which charge the court refused to give, but instead thereof did charge the jury, “ that if they find the defendant neither guilty of robbery, nor of assault with intent *400to rob, as charged in the indictment, then they should acquit the said defendant under said indictment.” To which refusal to charge, and to the charge as given, the plaintiff in error excepted. Upon the return of the verdict, the-plaintiff in error filed a motion for a new trial, on the-grounds of the refusal of the court to charge as requested,, and the charge as given, which was overruled by the court, and the ruling excepted to by the plaintiff in error, and he now, upon those grounds and that of the overruling of his motion for a new trial, which are assigned for error, asks-the reversal of the judgment of - the Court of Common-Pleas.

*W. M. Ampt,*for plaintiff in error:

The court erred in refusing to charge the jury as requested. Under an indictment containing a count for robbery and a count for an assault with intent to rob, the jury,, if they find the defendant not guilty under either count,, may, if the testimony warrant it, lawfully convict him of an assault or an assault and battery. The crimes of assault and of assault and battery are both inferior degrees of the-crimes of robbery and .of assault with intent to rob. S. & C. 406, sec. 15, and p. 407, sec. 17; *Heller*v. *The*State, 23 Ohio St. 582; *Stewart*v. *The State,*5 Ohio, 241; *Breese*v. *The State,*12 Ohio St. 146; Wharton’s Crim. Law, secs. 1678, 1679, 1681, 1682; 1 Archibold, 309, 601, 602; 2 Car. & *K.*214; 2 Archibald, 71, 74.

*Strong $ Gerard,*for the state:

There is no special statute in this state authorizing theeharge requested, and the common-law rule must govern. That while the defendant may be found guilty of any degree of the crime, or of an attempt to commit the same, he-can not be found guilty of every offense necessarily included in that with which he is charged. Warren’s Crim. Law, 266, and note 2, and cases cited; 12 Ohio St. 218; 13 Ohio St. 570; Crim. Code, 168; 8 Car. & P. 654; 9 Ib. 471; 5 Ind. 527; 9 Ib. 363; Archibold Crim. Pr., sec. 1357; 19 Pick. 479; 21 Ib. 523; 22 Ib. 17; 2 Eng. (Ark.) 374.

*401Rex, J.

"We think the court erred in refusing to charge the jury as requested, and in the instructions given. Robbery, and assault with intent to commit -robbery, as defined in sections 15 and 17 of the crimes act (S. & C. 406, 407), clearly include all the elements of an assault and battery, or of an assault alone, both of which are offenses of a degree inferior to those of robbery, and of assault with intent to commit robbery; and hence, under the provisions of section 168 of the code of criminal procedure (66 Ohio L. 312), the plaintiff’ in error might have been acquitted of the robbery and of the assault with intent to commit robbery, and convicted of the inferior offense.

Provisions similar to those contained in section 168 of the criminal code, exist in the statutes of England, and in many of the states of this country, and are simply the enactment into statutes of the well-settled rules of the common law. The decisions, both before and since the enactment of these statutes, have been uniform, respecting the right to convict.of an inferior offense, on an indictment for a superior one. *The People*v. *Jackson,*3 Hill, 92; 1 Arch. Cr. Pr. & Pl. 602. In *Stewart*v. *The State,*5 Ohio, 241, decided in bank at the December term, 1831, the questions were whether the Court of Common Pleas erred in refusing to charge the jury, that under an indictment for an assault with intent to kill, they might find the defendant guilty of simple assault and battery, without any such intent, and in instructing the jury that if they found the defendant guilty at all, it must be of the whole accusation. In their decision, the court say, “ That where an accusation for a crime of a higher nature includes an offense of a lower degree, the jury may acquit him of the graver offense and return him guilty of the less atrocious; ” and hence, on the ground that the court could not say that the defendant might not have been prejudiced by the instruction, the judgment was reversed. Eor a similar ruling, see *Heller*v. *The State,*23 Ohio St. 582, decided since the adoption of the code of criminal procedure.

*402The plaintiff in error, in this ease, may have been prejudiced by the refusal of the court to instruct the jury as requested, and by the instruction given, and, therefore, the judgment must be reversed and the cause remanded for a new trial.

*Judgment accordingly.*

McIlvaine, C. J., Welch, White, and Gilmore, JJ., concurred.