sought to be recovered in this action upon an implied promise must be either identically the money of the plaintiff, of which the defendant has improperly possessed himself, or Page 409. It seems to

us that the case before us comes within the spirit, if not the very words, of this rule. The defendant had no authority to collect this money, but, believing he had, he presented himself to the parties who had made their application for the licenses, and requested the payment. They promptly paid the money. Did they pay it to the defendant as their agent? Certainly not; they paid it to him as the supposed representative of the plaintiff. Did he, the defendant, receive the money as the money of the licensees, or of this plaintiff? Clearly of this plaintiff. And this plaintiff received the money, or a part of it, as the money belonging to it, as the money due for the licenses. Now is it not clear that the intention of all the parties, as shown by the record, was to pay this money to the board of education as of right belonging to it? The money came into the defendant's hands by mistake, as the rule above laid down requires, but all parties believing that it belonged to the plaintiff. It is urged, however, that the so-called "licenses" delivered to the licensees were so much waste paper, and would be no protection to the holders of them, and hence that the money delivered to the defendant was the money of the licensees, and not of this plaintiff. But that does not follow. The licensees had made proper applications, and, upon paying the license fee into the hands of the county treasurer, were entitled to a proper license. Now, we do not presume that it will be contended that these applicants can not pay the money either into the hands of the agent of the treasurer, or to him by their own. agent, if they see fit, and then be entitled to their licenses. If the treasurer has actually received their money, can they not compel the proper officer to issue

to them their licenses? Does not the money belong to the board of education until the license is issued? If, then, this board of education has received the applicants' money, have they not claimed it as their own? Supposing, then, that, by a mistake, this defendant has collected moneys actually intended for the board, he recognizes it as belonging to it, the board claims the money as its property; does not the defendant thereby recognize the plaintiff as entitled by right to the money, and does not the board approve the act of the defendant, and thereby make him its agent? The very action of the defendant in this matter sustains this view of the case; for, unless all the money collected by him belonged to the proper persons under the law for whom he was collecting it, he had no right, under the section of the Compiled Laws of 1384, to claim his ten per cent. In our judgment, there is no escaping the conclusion that all parties recognized that the money for the licenses was intended for this plaintiff; that the defendant was acting as its agent in collecting the same, or wrongfully received that which belonged to the plaintiff, and in either case was liable in this action for money had and received to the plaintiff's use; and, as he was not entitled to any of the money for collecting it, he should therefore pay over the amount retained to plaintiff. The judgment of the lower court ought to be reversed, and judgment given for plaintiff.

O'BRIEN, C. J., and FALL and LEE, JJ., concur.

[No. 515. August 24, 1893.]

PETRONILO CHACON, APPELLANT, V. TERRITORY OF NEW MEXICO, APPELLEE.

CRIMINAL LAW-INDICTMENT FOR FELONIOUS ASSAULT-CONVICTION OF ASSAULT AND BATTERY.-A person indicted for a felonious assault with a pistol may be convicted of a simple assault and battery with such weapon, the former offense necessarily including the latter, which has all the elements of the former offense at common law found therein.

ID.-ARGUMENTS OF COUNSEL ABUSE OF PRIVILEGE.-On a prosecution, on indictment, for a felonious assault, where it was in evidence that the defendant, a deputy sheriff, unnecessarily assaulted the prosecuting witness, and called him by an opprobrious name, because he found him at work on land of which defendant claimed the exclusive. possession, but it appeared the witness was sent there by an adverse claimant, it was not an abuse of privilege on the part of the prosecuting attorney to say, in addressing the jury, "the defendant was a deputy sheriff, and because he was a deputy sheriff he thought he was a big man, and he had a right to bulldoze and override and tyrannize over all the people in the Mimbres valley; and because he was a deputy sheriff he beat up this man without any cause whatever;" and the court properly refused to take these remarks from the consideration of the jury. The trial court has peculiar advantages for observing the propriety or impropriety of the arguments of counsel, and its discretion, when invoked, should not be interfered with, unless for obvious or probable injury.

ID. FELONIOUS ASSAULT-USE OF DEADLY WEAPON-GIST OF OFFENSE. It was not necessary, on such prosecution, to prove the deadly character of the weapon used, section 8, chapter 30, Laws, 1887, expressly declaring a pistol to be a deadly weapon. In all such prosecutions the gist of the offense charged is not the deadly character of the weapon, but the assault to do bodily harm; and the character of the weapon used goes only in aggravation of the offense.

APPEAL, from a judgment convicting the defendant of a simple assault and battery, from the Third Judicial District Court, Grant County. Affirmed.

The facts are stated in the opinion of the court.
VOL. 7 N. M.-16

JAMES S. FIELDER for appellant.

"The indictment under a statute prohibiting assault with a dangerous or deadly weapon, should not only aver the weapon to be dangerous or deadly, but should specify it." 1 Am. and Eng. Encyclopedia of Law, 813.

"Where an assault is charged to have been committed with a deadly weapon, the character of the weapon must be averred." State v. Russell, 91 N. C. 624; Slusser v. State, 71 Ind. 280. See, also, Walker v. State, 73 Ala. 17; Ballad v. State, 13 S. W. Rep. (Tex. App.) 674; State v. Schloss, 12 West, 225; 93 Mo. 361; 6 S. W. Rep. 244.

In the case of Bryant v. State, 41 Ark. 359, where it was held that "under an indictment for an assault with a deadly weapon, with the intent to inflict upon the person of another a bodily injury, etc., the accused may be convicted of a simple assault," and in one or two other cases to the same effect, the gist of the crime alleged is the assault and the intention of the party assaulting; so that a conviction may be had of a simple assault, as the one is but the other in a higher or lesser degree.

The general rule is that the instructions must be confined to the crime laid in the indictment. If they are found to have a tendency to mislead, the judgment will be reversed because they were given, although they are correct as abstract propositions of law. 2 Thomp. on Trials, sec. 2315.

Any statement made by counsel in addressing the jury, which is not sustained by the evidence, or is at least a reasonable implication from the evidence, is reversible error. 1 Rice, Ev. 129-134, and cases cited. Brown v. Swimford, 44 Wis. 282; Tucker v. Henniker, 41 N. H. 325.

"Undignified and uncalled for personal abuse by counsel in argument, of the accused, or of witnesses, or of jurors, calculated to inflame the passion of the jury, and to materially prejudice the accused in the trial, is sufficient to call for a reversal." Basset v. State, 101 Ind. 85; Befford v. Penny, 58 Mich. 424; State v. Williams, 65 N. C. 505; State v. Smith, 75 Id. 306; State v. Nolan, 85 Id. 576; Ricks v. State, 19 Tex. App. 308; Stone v. State, 22 Id. 185. See, also, Brown v. State, 103 Ind. 133, 1 West. Rep. 180; People v. Dane, 59 Mich. 550.

For language held to be ground of reversal, see Martin v. State, 63 Miss. 505; 56 Am. Rep. 813; Perkins v. Burley, 6 New Eng. Rep. 817, 64 N. H. 524; Cable v. Cable, 79 N. C. 589, 28 Am. Rep. 338.

EDWARD L. BARTLETT, solicitor general, for the territory.

The larger crime includes the less, and, under an indictment for the larger, a conviction for any smaller crime or offense, which is a part of, and necessarily included within, the larger, is good, and will be sustained. Givens v. State, 6 Tex. 344; State v. Coy, 2 Aikens (Vt.), 181; Prinderville v. People, 42 Ill. 217; Mills v. State, 52 Ind. 194; State v. Fisher, 103 Ind. 530.

It can and does make no difference whether the larger crime is statutory or common law, providing only that the perpetration of it involves and necessitates the commission of the smaller crime. State v. Bryant, 41 Ark. 359. See, also, State v. Fisher, supra.

A pistol is made a deadly weapon by the very act under which the appellant was indicted and convicted, and it was not necessary for the territory to make any proof as to that. Laws, N. M. 1887, ch. 30, sec. 8.

The case of Bryant v. State, supra, is exactly in point. In that case the defendant was indicted for an