Defendant’s challenge to the trial draws into the discussion the verdict, the evidence, and a relevant part of the instructions to the jury. It is in their correlation the defendant finds reason for his discharge; and in the same correlation, the State finds cause for his detention.
In some features the case at bar closely resembles S. v. Gregory, ante, 415. We refer to it for an analysis of the statute under which the present indictment was brought, and for a discussion of the validity of convictions thereunder of lesser grades of assault than that charged. C. S., 4639; S. v. Goff, 205 N. C., 545, 551, 172 S. E., 407; S. v. Hefner, 199 N. C., 778, 155 S. E., 879; S. v. Strickland, 192 N. C., 253, 134 S. E., 850.
Defendant has addressed no argument to the support of his general demurrer to the evidence, and the exception is presumably abandoned. Rule 28; In re Will of Beard, 202 N. C., 661, 163 S. E., 749; Gray v. Cartwright, 174 N. C., 49, 93 S. E., 432.
Under the exception to the refusal to discharge the defendant, counsel does, however, argue specially that there was no evidence pointing to the offense of “assault with a deadly weapon” upon which the sentence of the court rested.
If we are to understand the appellant to base his demand for discharge merely on the fact 'that the jury by an act of grace has found him guilty of a minor offense, of which there is no evidence, instead of the more serious offense charged, this is to look a gift horse in the mouth; more especially, since the conclusion that there is no evidence must be reached by conceding that all the evidence, including the admission of the defendant, points to a graver crime. Such verdicts occur now and then, despite the efforts of the courts to discourage them. When they' do, although illogical or even incongruous, since they are favorable to the accused, it is settled law that they will not be disturbed. S. v. Robertson, 210 *567N. C., 266, 186 S. E., 247; S. v. Smith, 201 N. C., 494, 160 S. E., 577; S. v. Cox, 201 N. C., 357, 160 S. E., 358; S. v. Spain, 201 N. C., 571, 573, 160 S. E., 834; S. v. Ratcliff, 199 N. C., 9, 153 S. E., 605; S. v. Johnston, 119 N. C., 883, 26 S. E., 163.
We consider the motion in arrest of judgment. This is predicated upon the instructions to the jury that they might find the defendant “guilty as charged, guilty of assault with a deadly weapon doing serious injury, or acquit.” It is argued that this instruction had the effect of resolving the charge into a bill with counts containing the offenses actually listed, and that the omission to charge the jury that they might find the defendant guilty of an assault with a deadly weapon withdrew that offense from their consideration, with the result that the verdict is tantamount to an acquittal. In support of this, counsel cites and quotes S. v. Thompson, 95 N. C., 596 r
“If upon the trial of an indictment, containing several counts, the jury is directed to confine its investigation to one count only, a general verdict of guilty will be construed as an acquittal on all the counts withdrawn from the consideration of the jury.”
There is early precedent for a bill of indictment containing counts, in which various types of assault are separately charged; S. v. McNeill, 75 N. C., 15 — to which we refer below. However, where the indictment is for a specific statutory crime, as it is here, under C. S., 4214, that practice is not followed and is not recommended. The crimes of which the defendant might be found guilty under the indictment in the case at bar were still before the jury and their warrant for so finding remained in the statute.
If there is an anomaly here, it is brought about by pertinent statutes; and in dealing with it the Superior Court has for a long time been able to discharge its duty and live at peace with the law. Under C. S., 564, the judge must confine himself to the evidence in giving his instructions to the jury: “He shall state in a plain and correct manner the evidence given in the case and declare and explain the law rising thereon.” Instruction under the statute is the law geared to the facts. In informing the jury as to their duty, we have never held that it is incumbent on the court, under this statute, to go beyond the evidence or advise the jury they may ignore its absence and find the accused guilty of a minor offense, which could only be reached by the process of arbitration. S. v. Cox, supra; S. v. Spain, supra. Frankly, however, it seems to be conceded that such is the privilege of the jury under the statutes cited. It is more than questionable whether the court can, by any sort of restriction, withdraw from the jury a power it derives from a positive statute. At any rate, the court has not attempted to do so through the doubtful expedient of rationalizing the law.
*568The omission of “assault with, a deadly weapon” from the catalogue of permissible verdicts did not deprive the jury of the statutory authority to consider it.
The jury, however, not only found the defendant guilty of assault with a deadly weapon, but it acquitted him in a previous part of the verdict of assault with a deadly weapon doing serious injury. It is contended that there is no specific offense known as “assault with a deadly weapon doing serious injury” and that, therefore, the clause “doing serious injury” must be regarded as surplusage, with the result that the defendant in one part of the verdict stands acquitted of assault with a deadly weapon, while in a later part of the verdict he is found guilty of that offense, which should entitle him to his discharge on his motion in arrest of judgment. The history of legislation on the subject of assaults and precedent based thereon do not support this contention.
Chapter 167, Laws of 1868-69, dealing with punishment of assaults, sets up a scheme somewhat similar to C. S., 4215, by which assaults are classified and punished according to specified aggravations of the offense. That law was repealed by the Laws of 1870-71, whereby, with certain exceptions, the named offenses were reduced from felonies to misdemeanors. S. v. Smith, 174 N. C., 804, 93 S. E., 910; S. v. Tyson, Ante, 492, 494. However, the 1919 statute — C. S., 4215 — carries forward the main features of the Laws of 1870-71, classifying assaults with or without aggravation for the purpose of fixing the punishment:
“4215. PuNishment noli Assault. Iii all cases of assault, with or without intent to kill or injure, the person convicted shall be punished by fine or imprisonment, or both, at the discretion of the court: Provided, that where no deadly weapon has been used and no serious damage done, the punishment in assaults, assaults and batteries, and affrays shall not exceed a fine of fifty dollars or imprisonment for thirty days; but this proviso shall not apply to cases of assault with intent to kill,” etc.
In S. v. McNeill, supra, the defendant was indicted under the Laws of 1868-69 on a bill containing three counts: The first for an assault with a deadly weapon, with intent to kill; the second, for an assault with a deadly weapon, with intent to injurej and the third for a common assault and battery. The court, we think properly, entertained the count for an assault with a deadly weapon, with intent to injure — although we are not aware that this had been set up separately as a statutory offense or that it was so regarded at common law. The point is, no matter whether we consider classification of assaults in the statute defining their punishment as creating, by necessary inference, statutory offenses of a distinct nature — and we do not intend to so decide — or whether the practice has been to submit to the jury along with the basic assault the distinguishing circumstances of aggravation, which we think more likely, we do not *569find in the instant case a serious departure from practice in the instructions or the response by the jury.
We are of the opinion that the clause “doing no serious injury” cannot be regarded as surplusage. It was responsive both to the charge of the ■court and the wording of the statute, and merely amounts to a finding that the assault produced no serious injury. When the proposition was formally presented to the jury on an integral basis, they bad to accept it or reject it, and would scarcely undertake to analyze it or “spell it out.”
Taken in connection with the evidence and the charge of the court' — S. v. Jones, 211 N. C., 735, 190 S. E., 733; S. v. Whitley, 208 N. C., 661, 664, 182 S. E., 338 — we think the verdict is acceptable in law, and its effect is to find the defendant guilty of assault with a deadly weapon —and no more. It is sufficient to sustain the judgment.