State v. Elborn

27 Md. 483 | Md. | 1867

Crain, J.,

delivered the opinion of this Court.

This case comes up on a writ of error to the Circuit Court for Queen Anne’s County, and it is admitted by the record, that the only question for our determination is, whether by the Act of Assembly of Maryland, an indictment charging the offence to have been committed by shooting can be sustained, unless it contains a charge or allegation of intent. The indictment in this case is founded on the 122d section of Article 30, of the Code of Public General Laws, and contained three counts. Eirst, for an assault by unlawfully shooting at a certain John W. Downes against the form of the Act of Assembly; second, for an assault by attempting maliciously and unlawfully to discharge a loaded pistol at Downes against the Act of Assembly; and third, for a common assault. To this indictment the defendant filed a general demurrer as to the first and second counts. This demurrer was sustained by the Court and judgment entered for the defendant. We are of opinion, from an examination of the section of the Code on which this indictment is founded, that the Circuit ■ Court was correct in sustaining the demurrer to these two counts in the indictment.

It is a well settled general principle of criminal law, that in an indictment for an offence created by the statute, the offence must be described in the words of the statute, and when the words of the statute are descriptive of the offence, it is necessary that the defendant should be brought within all the material words of the statute. 1 American Criminal Law, 364, and 1 Arclibold’s Criminal Law, 86, 87.

Under this statute or section of the Code, it is a material ingredient to charge the intent with which the act was done in the words prescribed in the statute. Penal statutes are to he construed strictly, and the words of the statute are not to be extended or enlarged by implication ; the language used in this section of the Code is very intelligible, and we must give it effect according to its plain and obvious meaning, which requires that the intent with which the assault was made must he charged in the indictment in the language of the statute, for unless this was the true interpretation of the statute, what was only a misdemeanor at common law to he punished by fine and imprisonment, would become a felony to he punished by confinement in the penitentiary. In our opinion such was not the intention of the law, and the two counts in this indictment are defective in not averring in the language of the Act, that the shooting was done with intent to maim, disfigure or disable Downes, and we therefore concur with the Circuit Court in their judgment on the demurrer.

(Decided 17th July, 1867.)

Judgment affirmed.