Ainsworth v. State ( 1840 )

Opinion of the court by

Mr. Justice Turner:

The exception to this indictment is, that the supposed offence, is a statutory offence, and not an offence at common law, and is not described in the substantial language of the statute.

It is §aid, in our law authorities, that it is in general necessary, not only to set forth on the record, all the circumstances which make up the statutable definition of the offence, but also to pursue the precise and technical language in which they are expressed. 1 Chitty Crim. Law, p. 283; and other authorities there cited. See also Starkie’s Crim. Plead. 248.

The statute speaks of an assault and battery, by means of a deadly weapon. This indictment does not state that there was.an assault and battery, neither does it state that the supposed stabbing, was with a deadly weapon. ’ The amount of .the charge in the indictment is that the accused stabbed and wounded Shelby rvith a drawn knife. ' The ’ indictment should have alledged that the accused did assault and beat, and it should also have alledged, that the assault' Avas with a deadly weapon.

The act aforesaid further provides that, if “ by such other means or force as was likely to produce death, with intent to kill, &c. shall be punished, &c.” '

If this clause is relied on, the samé particularity and certainty ? as to the assault'and battery, and the means used’, should be observed in the indictment. ■

Judgment reversed, and prisoner remanded for further proceedings in the court beloAV. ,