State v. Stedman , 7 Port. 495 ( 1838 )

COLLIER, C. J.

— 1. The indictment, in this case, is founded upon a statute which enacts that “ every person who shall assault another with intent to commit murder, rape or robbery, shall, on conviction thereof, be amerced.” The assault, as well as the battery, is charged to have been feloniously, wilfully, and of malice aforethought, made and done, with intent feloniously, wilfully, and of malice aforethought, to kill and murder.

It is objected to the indictment, that it charges the defendant with the commission of a felony; whereas the offence of an assault with intent to murder, is at most, a mere misdemeanor. The indictment is certainly not drawn with any remarkable regard to legal precision. It should have charged the defendant, with having unlawfully made the assault and done the beating, and then described the intent as follows: “him, the said Claiborne Hill, then and there, feloniously, wilfully, and of his malice aforethought, to kill and murder,” &c.—(Arch. Cr. Pl. 357.)

Where the words of a statute are descriptive of the nature of the offence, there, it is necessary to specify it in the particular words of such statute—(Rex vs. Pemberton, 2 Burr. 1037; Commonwealth vs. Boyer, 2 Mass. R. 128; Commonwealth vs. Morse, Ibid, 520; see also 8 Ibid, 536; 1 Binney’s R. 201; and the King vs. Jukes, 2 East’s R. 30.) In the case before us, the statute does not employ any terms descriptive of the offence — it merely declares what shall be the punishment of an offence known to the common law; and in order to frame an indictment understandingly, we must have a regard to that branch of jurisprudence in connection with the statute.

The same strictness is not required in this country, and at this day, in indictments at common law, as in those founded on statutes. Thus, in an indictment for an offence wholly at common law, every fact and circumstance which is not a necessary ingredient, may be rejected as surplusage, and need not be proved at the trial —(The King vs. Jones, 2 B. & Ald. 611) — and if such matter be defectively stated, the accused can .derive no advantage from it—(The King vs. Holt, 2 Leach, 593; The King vs. Howarth, 3 Stark. R. 26)—Nor will the statement of circumstances of gross aggravation, which are entirely useless, and even contrary to the truth, vitiate an indictment in other respects good—(Arch. Cr. Pl. 42.)

If it were conceded, as argued by the defendant’s counsel, that to charge an offence to have been feloniously committed, is equivalent to charging the accused with having been guilty of a felony, though the particular act or acts constituted in themselves a trivial misdemeanor, we are not sure that the defendant would derive benefit from the concession. The term felony, is one, if of any, at least of very unsubstantial meaning — it neither increases nor diminishes the quantum of punishment, and no particular consequences follow from thus designating an offence, however serious they may have been, and even now are in that country whence our legal notions are drawn. We then conclude, that the terms “feloni-ously, wilfully, and of his malice aforethought,” in charging the act done, are .mere expletives, and may well be rejected as surplusage; while they are peculiarly proper in characterizing the intent with which the act was done.

2. Ill regard to the second question, we think it clear, that the judge correctly instructed the jury, that if the defendant madej the first assault upon the prosecutor with a pistol, and the prosecutor retreated, and stooped to pick up a stone to defend himself, which was large enough to have occasioned the defendant’s death, and while thus stooping he was shot by the defendant, — had death ensued, the defendant would have been guilty of murder. The judge certainly mistook the law, when he informed the jury, that as the defendant was only indicted for an assault and battery, with intent to commit 'murder, he could not be guilty of a simple assault and battery. There can be no doubt but the greater offence embraces the lesser, of a kindred character. We cannot well conceive how, in point of law, the defendant could be prejudiced by such a charge. If not guilty of the greater offence, the jury should have acquitted, though had the law been correctly laid down by the bench, they might have been inclined to find him guilty of an assault and battery. Waiving, however, the consideration of this point, we think that the judge repaired his error, by the proposition to modify his instructions to the jury, after their return to the bar, and before they had delivered their verdict.

3. The objection to the venire, that it contains the initial only of the Christian name of several of the grand jurors, furnishes no cause for arresting the judgment.— It is certainly proper that the names of the jurors should be inserted at length, in as much as it would diminish the risk of summoning an improper person. Yet we are aware that it is not always practicable for the clerk to observe this precaution; as it sometimes happens that names imperfectly written, are placed in the box, from which the persons mentioned in the venire are drawn. To require the clerk, in such cases, to write the name at length, would be imposing upon him a duty not always easy to be performed, and which might be abused ; as it not unfrequently happens, that different persons are found in the same county, with the same surname, and the same initial, to designate their Christian name. But in no event can the defendant be prejudiced: if there is a mistake, and one who was not drawn, summoned on the venire, the defendant may plead in abatement.

Even admitting that the venire facias is such process as is embraced by the act of eighteen hundred and nineteen, which directs that “ The cleffc or attorney, issuing process, shall mark thereon the day on which such process issued”—(Aik. Dig. sec. 114, p. 278,) and then the want of the indorsement would not be fatal to the writ. It is clear that that law is merely directory. The teste of the writ, and the acknowledgment of its receipt by the sheriff, both show, that it was issued and received more than thirty days before the sitting of the court, to which it was returnable.

It can avail the defendant nothing, that the bill of indictment was endorsed by Alexander R. Hutchinson, instead of Hutcheson, as foreman of the grand jury ; though it appears by the record that Alexander R. Hutcheson was appointed foreman by the court. If necessary, we would intend the two names to indicate the same individual : the more especially as the record discovers that the grand jury themselves returned the bill, “ a true bill."

It is further objeete .. that ti e venire facias is defective, in being directed “ To the sheriff of Talladega county in as much as the act of December, eighteen hundred and thirty-six, (acts of 1836, p. 25,) requires, “ that hereafter, all original mesne and Anal process, issued from the cleric’s office cf any court in this state, shall be directed to any sheriff of the State of Alabama.’ ” This statute, in employing the terms original, mesne, and final, clearly limits its operation to process in the course of any suit or action, and does not extend to the writ under which the sheriff summons a grand or 'petit jury for ■ the term of a court.

In the points referred to this court, there is no erorr thus far: the judgment of the Circuit court is consequently affirmed, and a certificate (directed to issue accordingly;