Opinion, per JONES, J.

court resulted in a final judgment, the record does not disclose that the jurisdiction of the court of appeals was invoked in respect thereto; and, if any irregularities occurred in the trial court in this last proceeding, manifestly this court, under its constitutional jurisdiction, cannot review such irregularities, since there is no judgment of the court of appeals upon that feature of the case.

There are other questions which have been urged and argued by counsel for plaintiff in error, but we find no prejudicial error committed by the trial court in respect thereto.

Judgment affirmed.

MARSHALL, C. J., JOHNSON, HOUGH and MATTHIAS, JJ., concur.

WANAMAKER and ROBINSON, JJ., dissent from the fourth proposition of the syllabus, and from the judgment.

Statement of the Case.

WINDLE V. THE STATE OF OHIO.

Criminal law — Shooting with intent to kill, etc.— Lesser offenses – Assault and battery and assault - Evidence governs charge to jury.

An indictment charging, in separate counts, shooting with intent to kill and shooting with intent to wound includes the lesser offenses of assault and battery and assault, and where upon trial the evidence tends to support such lesser offense or offenses, it is the duty of the court to charge the jury with reference to such lesser offense or offenses. (State v. McCoy, 88 Ohio St., 447, modified.)

(No. 16863-Decided May 17, 1921.)

ERROR to the Court of Appeals of Hocking county.

At the April term of the court of common pleas of Hocking county, Lewis Windle was indicted upon two counts, the one charging him with shooting with intent to kill and the other charging him with shooting with intent to wound. To this indictment he entered a plea of not guilty. Upon the trial the prosecuting witness, Coyle, testified that as he passed the residence of the accused on the day in question the accused came out of the house with a shot gun in his hand, that after some angry words the accused pointed the gun at him and fired, and that a few of the shot took effect in his hip on the opposite side from where the accused was standing; that immediately after the shot was fired Windle "was trying to point the gun again and Mrs. Windle had hold of the gun and told him not to shoot again, that he had done enough;" and that "he said *** 'I will kill you. You attend to your own business,

Counsel for Parties.

or I will kill you,' and he was still trying to shoot again."

The testimony of the state's other witnesses tended to corroborate the testimony of the prosecuting witness, and the testimony of the accused and certain other witnesses was to the effect that the shooting was purely accidental.

The court in his charge in effect told the jury that they should either convict the accused of shooting with intent to kill or shooting with intent to wound, or both, or that they should acquit. At the conclusion of the charge, counsel for the accused requested the court to instruct the jury "That they may find the defendant guilty of assault and battery, or if they find he is not guilty of the offenses charged in the indictment, and not guilty of assault and battery, they may find him guilty of assault merely, if they find the evidence so warrants,' which request the court refused, and gave the jury no charge upon the subject of assault and battery or assault. The jury returned a verdict of guilty of shooting with intent to wound. Motion for a new trial was made and overruled and judgment entered upon the verdict. Error was prosecuted to the court of appeals where the judgment of the court of common pleas was affirmed. Error is prosecuted here to reverse both judgments.

Messrs. Woolley & Rowland and Mr. George E. Christman, for plaintiff in error.

Miss Mary K. Davey, prosecuting attorney; Mr. Eugene Wright; Mr. H. M. Whitcraft and Mr. John G. Price, attorney general, for defendant in

error.

1

Opinion, per ROBINSON, J.

ROBINSON, J. Were it not for the fact that the judgment of this court in this case would seem to be out of harmony with the recently announced judgment in the case of Bandy v. State, ante, 384, we would content ourselves with reversing this case upon the authority of State v. McCoy, 88 Ohio St., 447, in which the court declared: "An indictment charging, in separate counts, shooting with intent to kill and shooting with intent to wound includes the lesser offenses of assault and battery and assault, and upon the trial of the accused upon such an indictment the jury may find the accused not guilty of shooting with intent to kill and not guilty of shooting with intent to wound, but guilty of assault and battery or an assault only." But in the case of Bandy v. The State, the doctrine of the McCoy case of necessity has been modified, for it will not do to apply one rule where the marksmanship of the accused happens to be good and a different rule where the marksmanship happens to be bad, and to the extent that the McCoy case indicates that it is the duty of the court in all cases where the accused stands charged with shooting with intent to wound, or shooting with intent to kill, to charge, upon the request of the accused, the lesser offenses of assault and battery and assault, it is modified to require such a charge only in cases where there is some evidence or reasonable inference tending to support the lesser degree. However, in the instant case, the testimony of the prosecuting witness tends to support both a shooting with intent to wound and an attempt to shoot, or the handling of the gun in a menacing manner towards the prosecuting witness

Opinion, per ROBINSON, J.

without an actual shooting; for the prosecuting witness testifies "He was trying to point the gun again and Mrs. Windle had hold of the gun and told him not to shoot again, that he had done enough ** and he was still trying to shoot again." While this evidence was competent both as a part of the res gestae and for the purpose of showing the intent of the actual shooting, it also tended to support a charge of assault distinct from the assault which was a component part of the shooting with intent, and within the rule pronounced in the case of Bandy v. State, supra, clearly made a case where it became the duty of the court in addition to charging the major offenses laid in the indictment to also charge the minor offense of assault.

The evidence as to every phase of the offenses charged in the indictment, including the lesser offenses, not specifically charged, being in sharp conflict, the jury might have disbelieved a part of the testimony of the state's witnesses and believed another part thereof, and, had they been given the opportunity of finding the accused not guilty of the major offenses and guilty of the minor offense, might have felt justified in returning a verdict of guilty as to the minor offense only, and in such a contingency the prejudice to the accused would be apparent.

The issue having been made by the evidence, the attention of the court having been drawn to the issue by the request of counsel to charge, and the exception to the refusal having been saved and the prejudice being apparent, it becomes the duty of this court to reverse the judgment of the court of