Sibbitt v. Stryker.

in a subsequent part the contract was to be performed within one year, as above stated, there was a fatal repugnance between material allegations in the complaint.

But from the construction we have already given to the several allegations of the complaint, when taken together, we can not hold that any such fatal repugnancy was found to exist.

3. It is further argued that the complaint was bad for want of certainty in its averments, because it did not describe the lands to be conveyed, nor the interest in them which the plaintiff held and was to convey, nor the kind of deed which was to be made, nor the kind of business the plaintiff was to transact in Ohio, nor that he transacted any business aside from making the deed.

If the complaint was objectionable for want of certainty in any of the particulars indicated—a question we have not considered, and need not now-the proper remedy was for the defendant to have moved to have its allegations made more specific.

We see no objection to the sufficiency of the complaint, certainly none that was available on a motion in arrest of judgment.

It is contended that the evidence was not sufficient to sustain the verdict, and particularly as to the consideration upon which the contract sued on was alleged to have been made.

There was evidence tending to show that there was some apprehension, or supposed difficulty, concerning the title to certain lands in Darke county, Ohio, in the possession of Foreman, which the plaintiff had formerly owned and assumed to convey to the defendant, and which the defendant had afterward sold and conveyed to Foreman; that the plaintiff, at the request of the defendant, and under a contract similar to the one described in the complaint, went to Ohio, at his own expense, to see Foreman about the title

Rollins v. The State.

to these lands, and that while there was instrumental in having such a deed from him to Foreman for the lands in question prepared as was satisfactory to Foreman; that the plaintiff then returned home, and together with his wife executed the deed thus prepared and delivered it to the defendant. This evidence, therefore, tended to show a consideration for the alleged contract moving from the plaintiff, and the law will not inquire, as we need not do, whether it was an adequate consideration or not.

There was also evidence tending to sustain all the other material averments in the complaint.

Under these circumstances we can not disturb the verdict on account of any alleged insufficiency of the evidence to support it.

Some questions are made upon the instructions alleged to have been given by the court to the jury, but the papers before us, purporting to be the instructions referred to, are not included in the bill of exceptions, and were not signed by the judge. They are, therefore, not in the record, and consequently no question arises upon them in this court. 2 R. S. 1876, p. 168, sec. 324, clause 6; Etter v. Armstrong. 46 Ind. 197.

We see no cause for a reversal of the judgment.
The judgment is affirmed, at the costs of the appellant

ROLLINS V. THE STATE.

CRIMINAL LAW.-Assault and Battery with Intent.- Verdict.-On the trial of an indictment for an alleged assault and battery upon a person named, with intent to murder him, by shooting him with a gun loaded with powder and shot, a verdict finding "the defendant guilty of assault and battery" is sufficient without the addition thereto of the phrase "as charged in the indictment."

Rollins v. The State.

SAME.-Harmless Instruction.- Where, on the trial of such indictment, the defendant is found guilty of assault and battery only, error in an instruction to the jury in relation to the intent charged is harmless. SAME.-Instruction Cured by Evidence and Another Instruction.-Where, in such case, the jury have been instructed fully and fairly as to the statutory definition of the crime alleged, and from the evidence given the act of the defendant was clearly unlawful, the fact that, in another instruction in relation to what constituted the crime charged, the word "unlawfully" is omitted therefrom, is harmless.

SAME.-Failure to ask Instructions.—Where the instructions given to the jury are right as far as they go, the mere failure of the court to instruct as to other proper matters is not available as error where no request to so further instruct is made.

SAME.—Character of Defendant.—An instruction to the jury trying a criminal cause, that they should consider the evidence given as to the defendant's previous good character in determining his guilt or innocence, but that, if they were "satisfied, beyond a reasonable doubt, of the guilt of defendant," his previous good character "would not avail him as a defence or entitle him to an acquittal," is correct.

From the Gibson Circuit Court.

J. E. McCullough and L. C. Embree, for appellant.

C. A. Buskirk, Attorney General, W. H. Trippet, Prosecuting Attorney, and W. M. Land, for the State.

WORDEN, J.-The appellant was indicted for an assault and battery upon the person of Sylvester Cole, by shooting him with a gun loaded with powder and shot, with intent thereby to murder the said Cole.

Upon the trial of the cause by a jury, the following verdict was returned, viz.: "We, the jury, find the defendant guilty of assault and battery, and assess his punishment at imprisonment in the county jail for four months, and that he be fined in the sum of seventy-five dollars.

(Signed,)

"J. S. HESTON, Foreman." Motion by the defendant for a venire de novo overruied, and exception. New trial denied, and exception. Judg ment on the verdict.

The appellant insists that the verdict was radically asfective in not showing that he was guilty of assau and

Rollins v. The State.

battery as charged in the indictment, or in not otherwise showing that the assault and battery of which he was guilty was the same assault and battery as that with which he was charged. The verdict, it is claimed, may be true, and yet the defendant may not have been guilty of the offence charged in the indictment or any part thereof; that the assault and battery alluded to in the verdict may have been a different offence from that charged in the indictment.

The position assumed by the appellant is sustained by the case of Wills v. The State, 4 Blackf. 457. There, the defendant was indicted for larceny, and the verdict was, "We find the defendant guilty of petit larceny, and that he be imprisoned," etc. The court held that the verdict. did not authorize the judgment, "as the defendant might have been guilty of petit larceny without being guilty of the larceny charged in the indictment."

But the case above mentioned was overruled by the case of Moon v. The State, 3 Ind. 438, in which the court said they were unwilling to follow that case. Moon was indicted for muder, and the verdict was, "We, the jury, find the defendant guilty of manslaughter, and sentence him to imprisonment," etc. The court said: "We think the manslaughter of which the jury find the defendant guilty is that covered by the charge in the indictment. The issue which they were sworn to try was upon that charge, the evidence must have been relevant to that charge, and the instructions of the court, as well as the arguments of counsel, must have informed them that unless that charge was proved, as to the offence and jurisdiction in which it was prosecuted, they could not find the defendant guilty; and had it not been so proved, in the opinion of the court below, a new trial would have been granted."

The case of Moon v. The State, supra, was followed in vans v. The State, 7 Ind. 271. Evans was indicted for

Rollins v. The State.

murder, the verdict finding him guilty of manslaughter, without adding the words, "as charged in the indictment." The court said, "There is nothing in this objection," citing the case of Moon v. The State. The last two cases were approved in the following cases: Carrick v. The State, 18 Ind. 409, Cunningham v. The State, ex rel. Wilson, 35 Ind. 373, and Lovell v. The State, 45 Ind. 550.

We think on principle and authority, that the verdict was sufficient. In view of the facts, that the charge of assault and battery contained in the indictment was the one which the jury were called upon to try, and that they could not enquire, nor could evidence have been given on the trial, concerning any other assault and battery, the fair interpretation of the verdict is, that the defendant was guilty of the assault and battery which was charged in the indictment.

The verdict being good, it is not material to enquire whether the supposed objection thereto, had it been valid, was more properly made by a motion for a venire de novo than by a motion in arrest of judgment. Neither motion could prevail against a good verdict, the objection going only to the verdict.

Objection is made to the following charges given by the court to the jury:

"4. If you should find it to be true that the defendant, at said county and State, and within the time before named, did purposely shoot a gun, loaded with gunpowder and leaden ball, at and against the said Sylvester Cole, the question is still before you whether the defendant at the time he fired the gun intended to take the life of said Cole. In determining that question, it is important to consider the distance that the defendant was from the said Cole at the time of firing the gun, the character of the weapon used, and the manner it was loaded, whether it was such weapon as would likely take the life of a man at the distance the defendant was from the said Cole, at the time the VOL. LXII.-4