State v. DeLong , 89 Ark. 391 ( 1909 )

Hart, J.,

(after stating the facts.) The question for decision is as to the efficiency of the indictment. Counsel for appellee insist that the indictment is defective because it does not charge the manner of using the knife — making the assault; but in this we can not agree with them.

We do not think the case of Commonwealth v. White, (Ky.) 109 S. W. 324, cited by counsel for appellee, sustains their contention. There the indictment was framed under a section of the Kentucky statutes which provides that “if any person shall draw a deadly weapon, or shall point any deadly weapon at another,” etc. The court held that “the weapon should be so described in the indictment that the fact that it is a deadly weapon as used must appear from the language of the charge.”

In that case, the statute made the use of a deadly weapon an essential element of the offense. Hence, the court held that the indictment should charge the defendant in appropriate language “with having drawn or pointed a weapon which from its description or manner of use would be a deadly weapon.”

In the present case, appellee was indicted under section 1388, Kirby’s Digest. The gist of the offense was an assault with a felonious intent. The kind of weapon used, or the manner of its use, is not material, except to show the intent with which the assault was made.

In Russell v. State, 52 Ark. 276, it was held that it was sufficient to allege that an assault with intent to kill and murder was committed in the manner and with the intent necessary to constitute the offense charged, without expressly averring “the present ability” necessary to constitute the assault. The indictment approved in that case is similar to the indictment in this case.

In Lacefield v. State, 34 Ark. 282, the court said: “The rule is well settled that in an indictment for an assault with intent to commit an offense, the same particularity is not necessary, as is required in an indictment for the actual commission of the offense; and an indictment for an'assault with intent to murder need not state the means made use of by the assailant to effect his murderous intent.” To the same effect, see 2 Bish. on Crim. Proc. § 77; 21 Cyc. 863, and cases cited; State v. Croft, 15 Tex. 575; State v. Henn, 39 Minn. 476; People v. Savercool, 81 Cal. 650.

Mr. Wharton says: “In an indictment for an assault with intent to murder at common' law, or under a statute which does not specify the instrument, it has been held unnecessary to state the instrument or means made use of by the assailant to effectuate the murderous intent, though, where the pleader has it within his power to aver the weapon, it is better that the averment should be made; and where the statute speaks of “dangerous weapons,” or in any way points to a particular instrument, then the weapon should be specified. The details of effecting the criminal intent, or the circumstances evincive of the design within which the act was done, are considered matters of evidence to the jury to establish the intent, and are not necessary to be incorporated in the indictment. And in any view it is sufficient, unless the statute impose special conditions, if the use of a deadly weapon be averred, and the intent be specifically stated.” 2 Wharton’s Criminal Law (10th ed.), § 644.

In the present case the use of a deadly weapon is charged, and the intent is distinctly averred; and we think it was unnecessary to state in the indictment the manner of using the weapon. That was a matter of evidence to show the intent.

Therefore, it is ordered that the judgment sustaining the demurrer be reversed, and the cause be remanded for further proceedings.-