FRICK, C. J.
Appellant was charged with the crime of murder in the first degree, and upon a trial the jury found him guilty of “an assault with intent to murder.” Judgment was duly entered upon the verdict, and the appellant asks us to re[603]*603verse tbe judgment upon tbe following assignments of error: (1) Tbat tbe court erred in refusing tbe request of appellant to direct a verdict of not guilty; (2) tbat tbe verdict “is against tbe evidence;” (3) tbat “tbe verdict of tbe jury is contrary to law;” and (4) tbat tbe court erred in submitting tbe case to tbe jury upon tbe charge of murder “because there was insufficient evidence in tbe case to present that question to tbe jury.”
This is tbe second appeal of this case. Our opinion on tbe former appeal is found in 38 Utah, 1, 110 Pac. 434. Tbe information filed against tbe appellant is set forth in our first opinion. Barring tbe fact tbat appellant’s children who testified against him at tbe former trial changed their testimony at tbe present one, and testified tbat their former testimony with respect to what they said about appellant kicking and. beating their mother was not true; tbe evidence upon the part of tbe state at tbe last trial, with unimportant exceptions, was substantially tbe same as upon tbe former one. For this reason we shall not refer to tbe evidence in detail, but refer to tbe opinion aforesaid for a complete statement of facts.
As appears from our first opinion in this case, tbe information contained three counts. Tbe state elected to try the appellant upon tbe third count, in which it w:as, in substance, charged tbat be on tbe 26th day of November, 1907, did make an assault upon one Mary Y anee, and be did then and there “wilfully, unlawfully, deliberately, premeditatedly, feloniously, and of bis malice aforethought, and with tbe specific intent to take tbe life of tbe said Mary Vance,” strike, kick, beat, and bruise her, and tbat on tbe 27th day of November appellant “wilfully, unlawfully, deliberately, premeditatedly, feloniously, and of bis malice aforethought, and with tbe specific intent to take tbe life of tbe said Mary Vance,” did mix and mingle a fatal quantity of a deadly poison with a certain quantity of water which tbe said Mary Vance was then and there about to drink, and did drink, and tbat by reason of “the striking, kicking, beating^ and bruising of tbe said Mary Vance by tbe said Thomas Vance as afore[604]*604said, and the drinking of the water and poison as aforesaid, the said Mary Vance became mortally sick and distempered in her body, and the said Mary Vance of the beating, kicking, and bruising aforesaid, and of the poison aforesaid so by her taken, drank, and swallowed as aforesaid, and of the mortal sickness and distemper occasioned thereby, from the 27th day of November, A. D. 1907, until the 8th day of December, 1907, continually languished, and so languishing on the 8th day of December, 1907, ... of said mortal sickness occasioned by the said beating, kicking, bruising and poisoning aforesaid died, and so the said Thomas Vance the said Mary Vanee, in the manner and form aforesaid, wilfully . . . did kill and murder.” On the former appeal we held that in the third count upon which the appellant was tried he was charged with causing the death of his wife by a combination of two causes operating jointly. In other words, that the means described in the information which, it was alleged, produced death was the effects of the kicking, beating, and bruising inflicted upon the body of the deceased on the 26th day of November, and that such effects, operating in conjunction with the effects of the poison which it was alleged appellant administered to her on the following day, and nothing else,"caused her death. Under the foregoing charge, we accordingly held that, in order to find the appellant guilty of murder, the jury had to find that both causes operated together to produce death, and that the court erred in charging the jury that they could find the appellant guilty of murder, although they found: that the deceased died from the effects of the kicking and beating alone, or from the effects of the poison alone. We also held that, for the reasons just stated, th© third count charged but one offense^
We will now proceed to consider the assignments of'error. In answer to the first assignment, it is sufficient to say that for the reasons hereafter appearing the court did not err in refusing to take the case from the jury upon appellant’s request.
The fourth assignment is sufficiently answered by the verdict of the jury. In view that the jury failed to find the ap[605]*605pellant guilty of murder, they must have found that tbe evidence in tbeir judgment was insufficient to sustain that charge. Tbe only other assignment'is to tbe effect that tbe verdict and judgment are contrary to law. As already stated, tbe jury found tbe appellant guilty of 1 having assaulted tbe deceased with tbe intent to murder her. No exception was taken to tbe court’s charge in which tbe jury were directed that, under tbe information they might find tbe appellant guilty of an assault as aforesaid, if tbe evidence warranted such a finding beyond a reasonable doubt. For tbe purposes of this decision, we shall assume that tbe question now to be considered is properly presented for review, either under tbe first or tbe third assignment or under both.
Upon tbe question raised by tbe foregoing assignments, we think, that tbe provisions of Comp. Laws 1907, section 4893, are material. That section reads as follows: “Tbe jury may find tbe defendant guilty of 2 any offense, tbe commission of which is necessarily included in that with which be is charged in tbe indictment, or of an attempt to commit tbe offense.”
Notwithstanding'the foregoing provision, counsel for appellant strenuously argue that tbe offense of which appellant was found guilty by tbe jury is not included within tbe offense with which be was charged in tbe third count of tbe information, tbe material parts of which we have already set forth. This squarely presents tbe question of what offense, if any, is necessarily included within tbe charge of murder as contained in tbe third count of tbe information. As we understand counsel for appellant, they contend that, if tbe appellant bad been charged with having committed tbe alleged murder by kicking, beating, and bruising alone, then an assault with intent to murder might be said to be included within tbe charge, but, inasmuch as appellant stands charged with having committed tbe murder by tbe combined effects of tbe kicking, beating, and bruising and from tbe administration of poison, therefore an assault with intent to murder is not included. This conclusion is based upon two [606]*606grounds: (T) That in the charge of murder by the administration of poison without violence no assault is present; and (2) that inasmuch a© it is charged that death was caused by a combination of two causes, in one of which there was no violence, therefore the two causes did not combine in the assault, and, unless they did so, the assault which is a part of the offense of which appellant is found guilty cannot legally be included in the charge contained in the third count of the information. We are unable to grasp the logic of this contention. Even though it be conceded that in a charge of murder by poison without violence an assault is not included, yet in a charge of violently kicking, beating, and bruising another an assault is necessarily included.
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FRICK, C. J.
Appellant was charged with the crime of murder in the first degree, and upon a trial the jury found him guilty of “an assault with intent to murder.” Judgment was duly entered upon the verdict, and the appellant asks us to re[603]*603verse tbe judgment upon tbe following assignments of error: (1) Tbat tbe court erred in refusing tbe request of appellant to direct a verdict of not guilty; (2) tbat tbe verdict “is against tbe evidence;” (3) tbat “tbe verdict of tbe jury is contrary to law;” and (4) tbat tbe court erred in submitting tbe case to tbe jury upon tbe charge of murder “because there was insufficient evidence in tbe case to present that question to tbe jury.”
This is tbe second appeal of this case. Our opinion on tbe former appeal is found in 38 Utah, 1, 110 Pac. 434. Tbe information filed against tbe appellant is set forth in our first opinion. Barring tbe fact tbat appellant’s children who testified against him at tbe former trial changed their testimony at tbe present one, and testified tbat their former testimony with respect to what they said about appellant kicking and. beating their mother was not true; tbe evidence upon the part of tbe state at tbe last trial, with unimportant exceptions, was substantially tbe same as upon tbe former one. For this reason we shall not refer to tbe evidence in detail, but refer to tbe opinion aforesaid for a complete statement of facts.
As appears from our first opinion in this case, tbe information contained three counts. Tbe state elected to try the appellant upon tbe third count, in which it w:as, in substance, charged tbat be on tbe 26th day of November, 1907, did make an assault upon one Mary Y anee, and be did then and there “wilfully, unlawfully, deliberately, premeditatedly, feloniously, and of bis malice aforethought, and with tbe specific intent to take tbe life of tbe said Mary Vance,” strike, kick, beat, and bruise her, and tbat on tbe 27th day of November appellant “wilfully, unlawfully, deliberately, premeditatedly, feloniously, and of bis malice aforethought, and with tbe specific intent to take tbe life of tbe said Mary Vance,” did mix and mingle a fatal quantity of a deadly poison with a certain quantity of water which tbe said Mary Vance was then and there about to drink, and did drink, and tbat by reason of “the striking, kicking, beating^ and bruising of tbe said Mary Vance by tbe said Thomas Vance as afore[604]*604said, and the drinking of the water and poison as aforesaid, the said Mary Vance became mortally sick and distempered in her body, and the said Mary Vance of the beating, kicking, and bruising aforesaid, and of the poison aforesaid so by her taken, drank, and swallowed as aforesaid, and of the mortal sickness and distemper occasioned thereby, from the 27th day of November, A. D. 1907, until the 8th day of December, 1907, continually languished, and so languishing on the 8th day of December, 1907, ... of said mortal sickness occasioned by the said beating, kicking, bruising and poisoning aforesaid died, and so the said Thomas Vance the said Mary Vanee, in the manner and form aforesaid, wilfully . . . did kill and murder.” On the former appeal we held that in the third count upon which the appellant was tried he was charged with causing the death of his wife by a combination of two causes operating jointly. In other words, that the means described in the information which, it was alleged, produced death was the effects of the kicking, beating, and bruising inflicted upon the body of the deceased on the 26th day of November, and that such effects, operating in conjunction with the effects of the poison which it was alleged appellant administered to her on the following day, and nothing else,"caused her death. Under the foregoing charge, we accordingly held that, in order to find the appellant guilty of murder, the jury had to find that both causes operated together to produce death, and that the court erred in charging the jury that they could find the appellant guilty of murder, although they found: that the deceased died from the effects of the kicking and beating alone, or from the effects of the poison alone. We also held that, for the reasons just stated, th© third count charged but one offense^
We will now proceed to consider the assignments of'error. In answer to the first assignment, it is sufficient to say that for the reasons hereafter appearing the court did not err in refusing to take the case from the jury upon appellant’s request.
The fourth assignment is sufficiently answered by the verdict of the jury. In view that the jury failed to find the ap[605]*605pellant guilty of murder, they must have found that tbe evidence in tbeir judgment was insufficient to sustain that charge. Tbe only other assignment'is to tbe effect that tbe verdict and judgment are contrary to law. As already stated, tbe jury found tbe appellant guilty of 1 having assaulted tbe deceased with tbe intent to murder her. No exception was taken to tbe court’s charge in which tbe jury were directed that, under tbe information they might find tbe appellant guilty of an assault as aforesaid, if tbe evidence warranted such a finding beyond a reasonable doubt. For tbe purposes of this decision, we shall assume that tbe question now to be considered is properly presented for review, either under tbe first or tbe third assignment or under both.
Upon tbe question raised by tbe foregoing assignments, we think, that tbe provisions of Comp. Laws 1907, section 4893, are material. That section reads as follows: “Tbe jury may find tbe defendant guilty of 2 any offense, tbe commission of which is necessarily included in that with which be is charged in tbe indictment, or of an attempt to commit tbe offense.”
Notwithstanding'the foregoing provision, counsel for appellant strenuously argue that tbe offense of which appellant was found guilty by tbe jury is not included within tbe offense with which be was charged in tbe third count of tbe information, tbe material parts of which we have already set forth. This squarely presents tbe question of what offense, if any, is necessarily included within tbe charge of murder as contained in tbe third count of tbe information. As we understand counsel for appellant, they contend that, if tbe appellant bad been charged with having committed tbe alleged murder by kicking, beating, and bruising alone, then an assault with intent to murder might be said to be included within tbe charge, but, inasmuch as appellant stands charged with having committed tbe murder by tbe combined effects of tbe kicking, beating, and bruising and from tbe administration of poison, therefore an assault with intent to murder is not included. This conclusion is based upon two [606]*606grounds: (T) That in the charge of murder by the administration of poison without violence no assault is present; and (2) that inasmuch a© it is charged that death was caused by a combination of two causes, in one of which there was no violence, therefore the two causes did not combine in the assault, and, unless they did so, the assault which is a part of the offense of which appellant is found guilty cannot legally be included in the charge contained in the third count of the information. We are unable to grasp the logic of this contention. Even though it be conceded that in a charge of murder by poison without violence an assault is not included, yet in a charge of violently kicking, beating, and bruising another an assault is necessarily included. It is true that it was charged that the alleged murder was committed, or that death was caused by the combined effects of two distinct causes, but it is also true that the jury in their verdict must also have found that the death did not ensue from the combined effect of those causes, and hence that the acts of appellant did not cause death at all, but that the deceased died from some other cause or causes. The appellant was thus found not guilty of murder, but was found guilty of having assaulted the deceased with the intent to- murder her. In being charged with an assault, and kicking, beating, and bruising the deceased, the appellant certainly was charged with having committed a violent assault upon her person. No one can successfully dispute this. Moreover, the evidence in support of that charge practically stands undisputed. What, difference there is between the witnesses upon this point merely relates to the extent of the violence used by the appellant, and to the seriousness of the injuries that he inflicted upon the person of the deceased. In view of this, how can it be seriously contended that the offense of an assault with intent to murder was not included in the third count of the information ? The fact that it was necessary for the jury to find that it was the combined effect of the kicking, beating, and bruising and the poison that caused death before the appellant could be found guilty of murder has nothing to do with the lesser offense of an assault with intent to murder. The com[607]*607bination of the foregoing causes bad to be found to exist and co-operate before tbe appellant could be found guilty of murder because it was charged that he committed the murder by the use of those means and by no other.
But, when the jury repudiated the charge of murder, then the only question left was -whether an assault with intent to commit murder could legally be carved out of the principal offense charged, which was murder. We think that all of the authorities agree that where violence is a necessary ingredient in committing the offense, and is contained in the charge of murder, then the lesser offense, namely, an assault with intent to murder, is necessarily included in the principal charge — that of murder. Te say that in this case the lesser offense would have been included if the appellant had been charged with murder by kicking and bruising and beating the deceased, but that it is not included because it was also charged that something else had combined and co-operated with the foregoing in producing death, therefore it is no longer included, is to say that the lessor is not included within the greater. This, to our minds, is no more logical in law than it is in physics. The violent assault which it is alleged appellant made upon the deceased is just as much a part of the charge of murder after he is charged with the administration of poison as it was before the latter charge was added to the former. If this be so, then the assault with intent to murder must be included within the principal charge. The jury were thus authorized to find that, while the evidence fell short of establishing the fact that the appellant had administered any poison to the deceased, and that she died from the combined effects of the poison and the kicking, beating, and bruising yet that they from the evidence were satisfied beyond a reasonable doubt that appellant had kicked, beat, and bruised the deceased, and that he had done so with the intent of killing her. The jury may thus have found that he failed to accomplish his purpose but that he nevertheless made an assault upon the deceased with the specific intent to kill her.
It seems to us that the authorities under statutory provisions like ours leave little, if any, room for doubt that the [608]*608•offense of which, the appellant was convicted is legally included within the charge contained in the third count of the information. In the case of Ex parte Curnow, 21 Nev. 33, 24 Pac. 430, Hr. Justice Hawley reviews the subject, and in his characteristic lucid style shows that an assault with intent to commit murder is necessarily included within the principal charge of murder in case that acts of violence are included within the charge. The same conclusion is reached by the Supreme Court of Iowa in the case of State v. Parker, 66 Iowa, 589, 24 N. W. 225. To the same effect are the cases of Thomas v. State, 125 Ala. 45, 27 South. 920; Peterson v. State, 12 Tex App. 655; Davis v. State, 45 Ark. 464; Bush v. Comonwealth, 78 Ky. 268, and other cases that it is unnecessary to cite. Under a statute like ours, we have been unable to find a well-considered case that holds to the contrary.
The contention that the third count of the information contained two distinct offenses was passed on in the former opinion adversely to appellant’s contention, 3 and hence is the law of the case. In any event, however, there is in our judgment no merit to this contention.
We have carefully examined the cases cited by counsel for appellant, and in doing so have been forced to the conclusion that they have no application to the case at bar.
The judgment is affirmed, with costs.
McCARTY, J., concurs.