| Mo. | Jul 15, 1857
delivered the opinion of the court.
The defendant Feaster was indicted at the March term of the Circuit Court for Hickory county, in the year 1855. At the September term he appeared to the indictment and filed his petition for a change of venue, which was granted and the venue changed to the Circuit Court of St. Clair county. At the October term, 1855, of the Circuit Court for St. Clair county, the parties appeared and the case was continued until the next term. At the May term, 1856, the defendant filed his demurrer to the indictment, which was overruled. The case was then continued from term to term until the March term, 1857, when the defendant pleaded not guilty to the indictment, and a trial was had. The defendant was convicted by the jury and filled. He afterwards moved in arrest of judgment, which motion being sustained, the State excepted and brings the case here by appeal.
The only questions in the case arise on the indictment. The indictment is founded on the 88th section of article 2 of the act concerning crimes and punishments, (R. C. 1845, p. 351,) which declares, “ If any person shall be maimed, wounded, or disfigured, or receive great bodily harm, or his life be endangered by the act, procurement or culpable negligence of another, in cases and under circumstances which would constitute murder or manslaughter if death had ensued, the person by whose act, procurement or negligence such injury or danger of life shall be occasioned, shall, in cases not otherwise provided for, be punished,” &c. The indictment charges “ that Elbert Feaster, with force and arms, did then and there feloniously make an assault on the body of one Carrol Harper with a large stick, of the length of four feet, and the thickness of four inches, which stick he, the said Elbert Feaster, then and there held in both his hands,
The offence under this section is liable to the punishment of imprisonment in the penitentiary, and consequently under out law is a felony; for all offences whose punishment may be by confinement in the state penitentiary are declared by the statute to be felonious. The offence under this section is not the assault; it is the great bodily harm inflicted.
Now it is the well settled law that in indictments for felonies the act charged which constitutes the offence must be alleged to have been done feloniously. In this indictment now under consideration the pleader has omitted to charge that the act done which makes the offence was done felo-niously, and it is not enough to aver that the assault was made feloniously. This is a fatal objection. The court below therefore committed no error in arresting the judgment in this case.
the judgment is affirmed.