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The opinion of the Court was delivered by

Mr. Justice Watts.

The defendants were indicted upon a charge of assault and battery with intent to kill, on the person of N. R. Broughton, and were brought to trial on February 11, 1925, before his Honor, Judge J. K. Henry, and a jury. The defendants were convicted of assault and battery of a high and aggravated nature, and made a motion for a new trial, which motion was overruled by the presiding Judge, whereupon defendants received a sentence of the Court, from which, within due time, due notice of appeal to the Supreme Court was given.

Exception 1 is as follows:

“That his Honor erred, it is respectfully submitted, in charging the jury as follows: ‘Then you come on down the line and consider the.next offense embraced, which is simple assault and battery. You want to know what that is. “Simple assault and battery” is an assault and battery with the weapons that nature has provided you with; no outside weapons. There may be aggravated assault and battery; that is where a very strong man beats up a woman or a little child. But the ordinary simple assault and battery is the fist and skull’ — the error being that the definition of simple assault and battery given by the Court is incorrect and mis *234 leading, in that it conveyed to the jury the impression that if any weapon or means was used in inflicting the battery other than the hands and person of the assailant, it, as a matter of law and of necessity, could not constitute a simple assault and battery.”

This exception must be sustained. The jury could have found a verdict of guilty of simple assault and battery under the evidence in the case. While ordinarily an assault and battery with a weapon calculated to inflict death or serious bodily harm takes the case out of simple assault and battery, yet the jury have the right to take into consideration the threats made, if any, by the prosecutor, the size of the parties, the physical inequality of the men engaged in the fight. There was slight injury according to the evidence of the doctor. The weapon in the opinion of the jury might not have been regarded by the jury as ordinarily deadly. All of the facts and circumstances were for the jury’s determination. His Honor in his charge took from the jury the question of simple assault and battery.

State v. Knox, 98 S. C., 114; 82 S. E., 278, is directly in point on this issue. There, Knox cut the prosecuting witness with a knife, inflicting a rather serious wound. He claimed he was assaulted and acted in self-defense; the State, that he was the assailant. Judge Rice refused to submit the issue of simple assault and battery to the jury. He was reversed, because, says the Court:

“The rule is well settled that an indictment for a higher offense will sustain a conviction for a lower offense included in the higher, and that a jury can find a defendant guilty of an assault and battery under an indictment charging assault and battery with intent to kill. 2 Enc. PI. & Pr., 856, 857. There was testimony from which the jury might have drawn a reasonable inference, that the defendant was only guilty of assault and battery.”

This exception is sustained. The other exceptions are not considered.

*235 New trial granted.

Mr. Chief Justice Gary, Mr. Justice Marion and Mr. Acting Associate Justice R. O. Purdy concur.

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