9 Nev. 175 | Nev. | 1874
The legislature of 1873 amended section forty seven of the crimes act of 1861 by substituting for the offense, “ assault with intent to commit murder,” that of “assault with intent to kill.” Stats. 1861, 64; Stats. 1873, 119. Subsequently the defendant was charged by indictment with ‘ ‘ an assault with intent to commit murder.” The specific accusation reads: “that on the twenty-first day of April, A. D. 1873, or thereabouts, at the County of Storey, State of Nevada, without' authority of law, and with malice aforethought, with a deadly weapon, to wit: a knife, the said Charles F, Johnson, then and there being armed, did, without authority of law and with malice aforethought, make an assault in and upon one Wm. H. Virden, with intent to kill and murder the said Wm. H. Virden, all of which is contrary,” &c. No objection was interposed to the indictment until a motion was made to arrest judgment upon a verdict of guilty of an assault with a deadly weapon with intent to inflict a bodily injury, no considerable provocation appearing. The motion was rested upon the ground that the facts stated in the indictment do not constitute a public offense. The district court denied the motion. Defendant appeals from the judgment.
The failure to state the legal application of the crime in the charging portion of the indictment is a defect of form, and could not have prejudiced the defendant. State v. Anderson, 3 Nev. 256; People v. Phipps, 39 Cal. 326. The district court had jurisdiction over the subject of the indictment, and the judgment cannot be arrested if the facts stated constitute a public offense. Stats. 1861, 466.
The objection urged upon this point is in stating the assault to have been committed “ with intent to kill and murder. ’’ There is no statutory offense in this State designated “ assault with intent to kill and murder,” nor “ assault with
Judgment affirmed.
