Year: 1866




The plaintiff in error indicted in the Circuit
Court Of Smith county, at the July term, 1865 for
an assault upon one William Wright, (coored, J
with intent 10 commit murder in the first degree,
and at the same term Of the court was arraigned,
pleaded not guilty, tried and convicted, and
sentenced TO five years imprisonment IN the peni-
tentiary of the State.


Motions for new trial and in arrest Of judgment
we're made and overrued, and the accused has ap-
pealed TO this court.


II is now insisted that the Indictment does not
give sufficient description of the of9nse charged
in this that it does state all the circumstances
constituting the essential ingredient of the crime
and is therefore insufficient and that the Circuit
Judge erred in overruling the motion in arrest of
Judgment We do not think so.


Tho indictment contains two counts. The charge
on the first is "that Moses Harvil colored, the
2sth day of MAY, 1865 in the county of Smith, State
Of Tennessee did felOnousy, and with malice afore
though, assault William Wright (colored,) with in
tent TO commit murder in the first degree against
the peace and dignity of the State.


The charge in the second count is, that Moses
Harvil (colored,) on the 25th day of July 1865 in
the county and State aforesaid unlawfully and feo
niously, and with malice aforethOught, did assault
William Wright, (colored) with intent to commit
murder in the first degree upon him, the said VIM.
Wright (colored contrary the form of the statute
in such cases, made and provided, and against the
peace and dignity Of the State


In the case of the State VS.. Ladd I'd Swan, 22G
which was in indictment for unlawful and malicious
shooting this court said:


60" 1t is general rule that where offense s
ated or where it is defined and its punishment
larged by statute, that indictment setting forth
the crime in the words of the statute is sufficient
Rnd indeed the safest and preferable mode of des-
cription.'


The statutory description of this ofense in these
words: Whoever shall, feoniously and with malice
RfOrethought assault any person with intent to COM
,,,;4 i, ba frat darraa 606 code
The charge in the indictment Is IN the words OF the
statute with the addition Of the word 'unlawfully,
and this we think is sufficient.


1t has been holden in Maryland, says Judge Har-
r in delivering the opinion of the court in the case
Of Boomer vs.. the State, "that in indictment for
an assault with intent to murder it is not necessary
10 state the means and TO effect the purpose the
facts and circumstances showing the murderouS in
tent are matters of evidence for the jury, but need
not be stated in the Indictment citing Archibald,
notes, 262.


The authority is directly in point, and We are not
prepared to say it is not the law. To require IN an
indictment more than substantial description OF
The essentials of the crime imputed, says Judge Ca
ruthers in delivering the opinion of the court IN the
case of the State VS. Ladd "only tend to facilitate
the escape of offenders from the Just punishment of
their crimes, and should not be favored And While
we would require in an Indictment every particular
ty necessary for the protection of the accused and
the ends of a proper defense, we are unwilling at
this time, in view Of the alarming prevalence OF
crime in country to go further in shielding Oh
Tenders especially after they have, in this case,
been pronounced guilty by a jury, by interposlng
what must be regarded as technicalItles than
the stern and infexibe rules of law and proper
administration of justice may demand.


There is no error in the judgment of the Circuit


' HAWKINS, Judge.


Attest: JESSE g. FRAZER Clerk.