Murdock v. State , 65 Ala. 520 ( 1880 )

Per Curiam.

— Eor the appellant, a reversal of the judgment and sentence of conviction is claimed, on several grounds, which will be considered in the order of their presentation by counsel.

■ It is first insisted, the indictment is insufficient, and the demurrers taken to it ought to have been sustained. As an accusation of the statutory felony of assault with intent to maim, the insufficiency of the indictment will be readily conceded, and it is not probable that it was the intention of the pleader to charge that offense. The first count is a charge of an assault aggravated by the accompanying intent to maim. The form of a count for an assault under the Code, by analogy to the forms prescribed for kindred offenses, may be very brief. A simple charge, that before the finding <¡)f the indictment A. B. assaulted C. D., would be sufficient The pleader may, if he thinks proper, add an averment of the intent with which it was committed, or. any other fact or circumstance of aggravation, without changing the nature of the offense. The intent charged in the first count, if shown, might have been cause, in the judgment of the jury, for subjecting the accused to severer punishment, of the same character, than would have been visited upon him, if that intent had not existed. The offense, whether charged in the one form or the other, is the same, — a misdemeanor.

The second count charges, not only an assault, but the means employed in committing it, and involves an averment of a battery, — very informal, it is true. The term assault includes, of necessity, an attempt to do another personal violence; and this count proceeds further to aver that the attempt was completed, by the pouring of the turpentine and pepper upon the person of the prosecutrix. A battery is committed, whenever there is wrongful violence inflicted upon another, without his consent. True, this averment of the count is in the alternative — that there was the pouring, or the attempt to pour; but such alternative averments are authorized by the statute. — Code of 1876, §§ 4796-98. The indictment was not obnoxious to the demurrer, and it was properly overruled. This view also disposes of the motion in arrest of judgment. The verdict of the jury was responsive to the second count in the indictment.

The instructions to the jury requested, are not shown by the bill of exceptions to have been in writing; aDd unless that affirmatively appears, it is the uniform practice of this court not to consider of and pass upon their correctness.

The judgment is affirmed.