State of Maryland vs. Dent.-1830.

The second reason, we think, is well founded. The act of assembly does not affect the form of the indictment, or the evidence necessary to support it, but leaves both as at common law, only changing the nature of the punishment. The offence is still a misdemeanor. The only question therefore, is, whether the means or instrument by which the intention was to be effected, ought to have been stated in the indictment. And we think they ought to have been. In ordinary cases of assault, the means, or instrument of inflicting the injury, are mere matters of aggravation, and therefore may be inserted or omitted, without detriment. But it is otherwise, where the assault is accompanied by an intention to commit murder. In that case, the means or instrument used, are material and necessary in the description of the offence, as they indicate the malicious intention of the party, and must therefore be stated as well in this case, as where the crime has been consummated; and for this plain reason, amongst others, because in both, the adequacy of the means, as well as their use must be proved before the party can be convicted, and no evidence should be received of them, unless they are stated in the indictment. It will be found on recurrence to Chitty, Starkie, and Archbold, that all the precedents of indictments at common law, for offences of this kind, are in conformity to this opinion. The court therefore arrest the judgment on the first count, but direct the clerk to enter it upon the second."

The present writ of error, was thereupon prosecuted by the State.

The case was argued before BUCHANAN, Ch. J., and EARLE, STEPHEN, and DORSEY, J.

Taney, (Attorney General,) and Gill, for the State, contended, that an indictment for an assault with intent to murder, under the act of 1809, ch. 138, is sufficiently certain, which charges the assault to have been made with that intent. That in such case neither the special manner of the VOL. III.-2

State of Maryland vs. Dent.-1830.

assault, nor the circumstances from which the particular intent, may be inferred, need be stated.

They referred to the act of 1809, ch. 138, sec. 4. 3 Chitty's Cri. Law, 569, 591. State vs. Cassel, 2 Harr. and Gill, 410. 1 East. Cr. Law, 411. 3 Johns. Rep. 511. 1 Stark on Plead. 98, 102.

No counsel argued for the defendant in error.

STEPHEN, J., delivered the opinion of the Court.

This case comes up on a writ of error to Baltimore City Court, and the sole question which it presents for the decision of this court is, whether according to the principles of criminal pleading, it is necessary in an indictment for an assault with intent to murder, to state in the indictment, the instrument, or means made use of to effectuate the murderous intent. It is incontrovertibly true, that the main object of all pleadings, both civil and criminal, is to apprise the party charged, of the nature of the case, to which he is. called upon to respond, so that he may not be taken by surprise, and that he may come prepared to defend himself against the allegations of the opposite party. But we do not think that the principles of criminal jurisprudence require in this case, any thing more than that the offence should be charged in the language of the statute by which it is created. The indictment in this case, is founded upon the act of 1809, commonly called the penitentiary lawthe offence as defined, and prohibited by that law is an assault with intent to murder. This is the character given to the assault charged in this indictment. It is averred that it was committed with intent to murder, and such averment we consider to be a full compliance with the requisitions of the law. The means of effecting the criminal intent, or the circumstances evincive of the quo animo, with which the act was done, are considered to be more properly, matters of evidence for the jury, to demonstrate the intent, than proper to be incorporated into the indictment; because that intent may be proved or illustrated by such a variety

State of Maryland vs. Dent.-1830.

of circumstances, as it would be very inconvenient, at all times, to embody in the indictment, or place upon the record; and if the means adopted, are necessary to be stated, it would seem to follow as a necessary consequence, that all the means, however multifarious, should be explicitly averred. Sir Matthew Hale observes 2 P. C. 193, "That in favor of life, great strictnesses have been in all times. required, in points of indictments; and the truth is, that it is grown to be a blemish and inconvenience in the law, and the administration thereof. More offenders escape by the over easy ear given to exceptions in indictments, than by their own innocence; and many times gross murders, burglaries, robberies, and other heinous and crying offences, escape by these unseemly niceties, to the reproach of the law, to the shame of the government, and to the encouragement of villainy, and to the dishonor of God; and it were very fit, that by some law, this overgrown curiosity and nicety, were reformed, which is now become the disease of the law, and will, I fear, in time, grow mortal, without some timely remedy." It must be admitted, that there is much good sense in the above remarks, which are entitled to great weight, when it is considered that they proceeded from one of the most enlightened, humane, and christian judges, that ever graced or adorned the bench of British justice. That it is sufficient to charge the offence in the words of the prohibitory statute, will be found in 2d Burr. 1036, where the court says, "It is enough for the prosecutor to bring the case within the general purview of the statute upon which the indictment is founded, if that statute has general prohibitory words in it; for where an indictment is brought upon a statute which has general prohibitory words in it, it is sufficient to charge the offence generally, in the words of the statute."

In 3d Johns. N. Y. Rep. 511, the same principle is recognized, and affirmed when the court says, "The intent to commit

McCormick vs. Gibson, et al. —1830.

murder, was here charged in the words of the statute, and we think that was sufficient."

This indictment is for an assault and battery, and the quo animo was to be collected from the circumstances. It was enough to state with the usual precision, the facts requisite to constitute an assault and battery, and to aver the intent with which it was made. This intent might have been inferred, and proved from the declarations of the defendant, previous to the assault. The indictment required no other facts, than were necessary to establish an assault and battery. The crime charged, was after all, but a misdemeanor. It was not a felony, though the intent was to commit one. The same principle has been affirmed and established by this court, in the case of the State vs. Cassel, 2 Harr. and Gill, 407. Upon the whole, we think, that the facts and circumstances evincive of the murderous intent, are matters of evidence, to be submitted to the jury, and are not necessary to be charged in the indictment.

The judgment of Baltimore City Court is therefore reversed.

JUDGMENT reversed, AND PROCEDENDO AWARDED.

JAMES MCCORMICK, JR. VS. FAYETTE GIBSON, et al. Dec. 1830.

The bar, arising from the act of limitations, relied upon in the answer of one co-defendant to a bill in Chancery, brought by a creditor against devisees, to recover his claim out of the real estate of a deceased debtor, upon the ground that the personal estate had been exhausted in the payment of debts, will not enure to the benefit of the other co-defendants, and authorise the Chancellor to dismiss the bill.

Upon a bill of this description, where the devisees have received distinct parcels of property, the interests of the defendants are several and distinct. The claim against each being in proportion to the amount devised to him.

McCormick vs. Gibson, et al.— 1830.

APPEAL from Chancery.

This was a bill filed in the Court of Chancery on the 19th June, 1824, against the heirs, devisees and administrator, and purchasers from the heirs and devisees of Jacob Gibson, deceased, (the appellees,) by James McCormick, Jr. (the appellant.) The object of the bill was to enforce the payment of a promissory note of Jacob Gibson, dated the 18th October, 1817, payable five months after date, for $2500, which had regularly come to the hands of the complainant by endorsement. The bill alleged the personal estate of the maker of the note to have been exhausted in the payment of debts; that this note had not been paid; that a large real estate of the deceased was in the possession of the defendants by his devise, and by purchase from his devisees, and prayed for a sale of the real estate, payment of the note, and for general relief. Jacob Gibson died on the 10th of January, 1818. Several of the defendants answered the bill, others, non-residents, were proceeded against by publication, &c. Among the answers was the following of James Tilton, who had intermarried with one of the devisees of the deceased.

"The separate answer of James Tilton to the bill of complainant aforesaid:

"This defendant, now, &c. says that he has no particular knowledge of the note alleged to have been executed by the said Gibson, to Samuel Hughes, or of the endorsements thereon; but if the same was executed and endorsed as alleged, he is advised that the debt was due more than three years before the filing of the aforesaid bill, and he pleads the act for the limitation of actions, in bar to the relief which is sought by the bill of complaint, and prays to have the benefit of the same at the final hearing. This defendant admits the death of the said Jacob Gibson, and that he made a will, as stated in the complainant's bill, and admits the will as filed. The defendant, however, does not admit that the personal estate has been exhausted in a due course of administration; on the contrary, he de