¶2
This is an appeal from a conviction of assault and battery, and the appellant’s complaint is that the indictment on which he was tried, and which the reporter will set out in full, was fatally defective in that it failed to charge
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the intent with which the alleged assault was made. The ground of the contention is that between the words ‘ ‘ malice aforethought” and the words ‘‘kill and murder,” there should have been written the word “to” instead of the word “did.” This, of course, is true if the indictment was intended to charge an assault and battery with intent to kill and murder. The use of the word “did” was probably a clerical error. Leaving out of view the fact that the indictment probably charges the appellant with the crime of murder, and, if so, that he could be convicted thereunder of assault and battery, section 1499, Code of 1906 (Hemingway’s Code, section 1257), the indictment does charge an assault and battery in appropriate and technical language; and, if it fails to charge that the assault was committed with intent to kill and murder, the appellant cannot complain thereat, since he was convicted of assault and battery only.
