| Ark. | May 15, 1886
Sam Holt was indicted in the Washington circuit court for assaulting 01. Cowger, with a deadly weapon, with intent to inflict upon his person a bodily injury, when no considerable provocation appeared, and was convicted. He filed motions for new trial and in arrest of judgment, which were overruled, and he saved exceptions and appealed.
The commencement of the indictment is as follows : “ The grand jury of Washington county accuse Charley Washington, John Washington and Sam Holt, of the crime of an assault with a deadly weapon, committed as follows.” Appellant insists that this commencement is' insufficient and the indictment is fatally defective, because it is not stated, in the commencement, that the grand jury accused the defendants therein named of the crime charged “in the name and by the authority of the State of Arkansas.” ' This is not required or necessary. There is no particular form of indictment prescribed by the statute of this state, which is required to be strictly followed. The constitution of this state says, it shall conclude: “ Against the peace and dignity of the State of Arkansas.” Further than this no particular form of words is required to be used. The statute says : The indictment must contain: “ First, The title of the prosecution, specifying the name of the court in which the indictment is presented, and the names of the parties. Second, A statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what it intended.” That it must be direct and certain as regards: “ First, The party charged. Second, The offense charged. Third, The county in which the offense was committed. Fourth, The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.” And that it is sufficient if it can be understood therefrom: “ First, That it was found by a grand jury of a county impaneled in a court having authority to receive it, though the name of. the court is not accurately stated. Second, That the offense was committed within the jurisdiction of the court, and at some time prior to the time of finding the indictment. Third, That the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction, according to the right of the case.” Mansfield's Digest, secs. 2121, 2105-6.
One ground of appellant’s motion for a new trial is, the court did not properly instruct the jury. It appears from the bill of exceptions in this case that the court gave the jury instructions which are not copied in the transcript, 'lo those given and copied in the transcript, no exceptions were taken, and no objections are urged against them here. •“ It is the province of the court to give in charge to the jury such principles of the law as it may deem applicable to the case.” If the defendant or plaintiff desires other instructions, he may ask them, but if he fails to do so and remains voluntarily silent, he cannot complain. Carroll v. State, 45 Ark., 539.
It is urged here that the verdict of the jury was contrary to the evidence. The testimony of the witnesses was conflicting and contradictory. It was the province of the jury to determine which of them was entitled to credit, and to find accordingly. This court will not review the evidence for the purpose of passing upon the correctness of their conclusion. There was sufficient evidence to sustain the verdict here. Main v. State, 13 Ark., 285.
Appellant askedvfor a new trial because he discovered evidence in his favor since the verdict. The evidence is, that one of the state’s witnesses was not present when the assault charged was made. This evidence would only have gone to impeach the credit of the witness said to be absent at the time of the assault. The rule is well settled that such evidence is not a sufficient ground for a new trial.