The opinion of the court was delivered by
Johnston, J.:
The objection that the indictment is not sufficient to sustain the verdict and judgment is fatal to the conviction. The appellants were manifestly prosecuted under § 38 of the crimes act. It provides that—
“Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished by confinement and hard labor for a term not exceeding ten years.”
*6141. Indictment-specific tent should be averred. *613The court charged the jury that before they could find the defendants guilty, they must be satisfied that they had made *614the assault with “ intent to unlawfully and feloniously kill or maim, as charged in the indictment filed in this case against them.” The assumption of the court that the indictment charged an intent to unlawfully kill or maim, is. not borne out by an examination of that pleading. While it charges that an assault was feloniously made with a deadly weapon, it fails to allege a specific intent to kill, maim, ravish, or rob, or any other intent necessary to constitute the crime of which the defendants were convicted. The indictment sufficiently alleges an assault, which is a misdemeanor, but it omits the allegation iMent, which makes the offense a felony. When a misdemeanor is committed with a certain intent jj. becomes a felony, and therefore the specific intent is a material fact to be alleged and proved. The assault may be committed with any one of the several intents mentioned in the statute — that is, to kill, or maim, or rob, or ravish, or an attempt to commit burglary, or in resisting the execution of legal process. The charge, however, cannot be made disjunctively or in the alternative — that is, that the assault was made with intent to kill or ravish, or with intent to rob or maim. It will be readily seen that the gist of the offense consists in the intent with which the assault was committed, and hence that intent must be distinctly alleged and proved. It is a well-settled rule of criminal pleading that when a specific intent is required to constitute an offense, such intent must be averred; and no description of the offense is complete without it. (Wilson v. The People, 24 Mich. 411; Commonwealth v. Boynton, 12 Cush. 500; The State v. Freeman, 6 Blackf. 248; The State v. Card, 34 N. H. 510; Johnson v. The State, 1 Tex. App. 146; Bartlett v. The State, 2 S. W. Rep. 829; United States v. Wentworth, 11 Fed. Rep. 52; Whart. Crim. Pl. and Pr., § 163a; Chitty, Crim. Law, 233.) The allegation in the indictment that the assault was made unlawfully and feloniously, does not remedy the defect. In charging the commission of a consummated offense the omission of a specific intent is not necessarily fatal, where it is alleged to have been done on purpose, of malice aforethought, unlaw*615fully and feloniously; but where the act is not consummated, and the intent characterizes and forms a part of the offense, then it is clear according to all the authorities that the intent must be alleged. (Commonwealth v. Hersey, 84 Mass. 180, and authorities cited.)
In Commonwealth v. Slack, 19 Pick. 307, it is said:
“So if an offense at common law is by statute punishable with additional severity, when committed with the intention to perpetrate another and greater offense, the criminal intention must be directly averred in the indictment, or the offender cannot be subjected to the additional punishment. It is not sufficient that the indictment concludes contra formam statuti. So if a misdemeanor is declared to be felony when committed with a certain criminal intent, it is not sufficient to aver in the indictment that the criminal act was done feloniously.”
2. Sent Sentence, not judgment, reversed. It is intimated that the indictment is sufficient under §§41 and 42, but there is the same necessity for the allegation of intent under § 41 as under § 38, arid it is apparent from the indictment, charge to the jury, and verdict, that the prosecution is not based on § 42. The indictment is a sufficient charge of assault and battery, and it is suggested on the part of the state that if the conclusion is reached that the indictment is not sufficient to sustain the offense of felony, and therefore the sentence of the defendants to imprisonment in the penitentiary at hard labor was erroneous, this court should change the punishment from that suitable to the commission of a felony to such a sentence as would be suitable to the commission of willful assault and battery. This we J cannot do. It is the district court and not the supreme court that is authorized to pronounce the sentence, and to exercise its discretion in determining what punishment between the minimum and maximum penalty should be imposed. The appellants were tried for felony and not for a misdemeanor, and the court failed to charge the jury on the lower degrees, such as assault, and assault and battery. Upon conviction for assault and battery the defendants may be fined in a sum not exceeding $500, or by imprisonment not exceeding one year. We have no means of knowing what *616punishment the court would have imposed, whether imprisonment or fine, and if a fine, the amount of the same, or if imprisonment, the length of term. We cannot change the verdict nor fix the penalty, and can only reverse the judgment erroneously rendered, and remand the case for such further action as the state may desire to take. That will be the judgment of this court.
All the Justices concurring.