| Cal. | Jul 1, 1858
The objections to the indictment are not sustained by the authorities cited.
It is alleged that the defendant at a time and place mentioned, feloniously assaulted, cut, and stabbed the deceased, and inflicted
The omission to describe the weapon used is not material. Though it is usual to name some weapon, the prosecution is never held to prove the killing by the weapon charged. It is sufficient if it is proven to have been done with any other weapon capable of producing death, in the same manner as the instrument named in the indictment. (Wharton, 412.)
In Mew York, the rule has been carried further. In The People v. Colt, (3 Hill, 436,) under an indictment charging the, murder to have been committed by cutting and stabbing with some instrument to the jurors unknown, proof was admitted, tending to show that the death was caused by a pistol-shot.
The objection that the indictment does not state the length and depth of the wound, nor in what part of the body it was inflicted, goes to the form rather than the substance of the indictment. Formerly, at common law, such a description was held to be necessary, though it was not necessary that it should be proven as charged, but in later cases this rule has been changed.
In the case of Rix v. Masley, (2 British C. C., 102,) a motion in arrest of judgment was made, on the ground that the indictment contained no sufficient description of the wounds from the effect of which it was said the death ensued.
Counsel contended that it was necessary to describe the particular parts of the body on which the wounds are alleged to be, and the facts should, according to ancient forms, be so stated that you might place your finger on the part of the body where the wounds are described to be, and that this was still requisite, though a conviction may take place on evidence varying from it. The case was reserved for argument before all the Judges, and it was held, that “ as common sense did not require the statement of these particulars, and as the statement, if introduced, need not be proven, it was unnecessary.” This doctrine was reaffirmed in the case of Rex v. Tomlinson, (25 Eng. Com. Law R., 442.)
The “ facts necessary to constitute the crime ” of murder are, that a wound is inflicted with a felonious intent, that it is mortal, and that death ensued from the effects of the wound within a year and a day after its infliction. (See People v. Arro, 7 Cal.)
Judgment affirmed, and the Court below is directed to fix a day to carry its sentence into execution.