By  the  sixth  instruction  the  jury  were  informed,  that  if  they
believed  from  the  evidence,  a  given  state  of  facts  stated  in  the
instruction,  '^  they  must  find  the  defendant  guilty  as  charged  in
the  indictment,  or  of  shooting  in  the  attempt  to  commit  man-
slaugliter,  accoi*ding  as  they  might  believe  the  fact  to  be.^'
The  jury  found  ^Hhe  defendant  not  guilty  of  an  assault
with  an  attempt  to  kill  and  murder,  as  charged,  but  guilty  of
an  assault  in  the  attempt  to  commit  manslaughter  on  Jacob
Webster."

The  question  presented  is,  whether  the  verdict  sufficiently
finds  an  offense  known  to  our  laws,  and  embraced  in  the  inikir
ment  under  consideration.  It  is  insisted,  that  no  such  offense
as  that  described  by  this  verdict  is  embraced  in  the  statute.
This  may  be  admitted,  without  in  any  manner  affecting  the
validity  of  this  verdict,  or  the  judgment  pronounced  upon  it.
Generally,  where  an  accusation  includes  an  offense  of  an
inferior  degree,  the  jury  may  discharge  the  defendant  of  the
higher  crime,  and  convict  him  of  the  less  atrocious.  Wharton^s
Amer.  Or.  L.,  §  384.
Of  this  the  books  give  numerous  instances.  A  common  illoa-
tration  is,  that  of  an  indictment  for  assault  and  battery,  or  an
assault  with  intent  to  kill,  where  the  defendant  may  be  con-
victed of  assault  and  battery,  or  of  assault  alona  Wharton's
Amer.  Or.  L.,  §  385,  and  numerous  cases  cited  in  notes;
and  §§  560,  665.
