No. 9802 | La. | Dec 15, 1886
The'opinion of the Court was delivered by
Defendant appeals from a conviction of an assault with intent to kill, under section 793 of the Revised Statutes, and from a ■sentence of imprisonment and a fine exceeding three hundred dollars.
Tiis complaint, by means of a motion in arrest of judgment, presents two questions:
1st. The alleged defect of the information in this, that it does not qualify the assault, or the intent as felonious.
2d. The fatal omission of the words, “ in the peace of the State then being.”
1st. A serious doubt may exist as to the nature of the offense denounced by section 793, and as to the intention of the law-giver, to therein provide for a felonious offense.
But be that as it may, we find that the information in this case charges the accused with “ an assault with intent to kill and feloniously slay,” etc., and we conclude that the iutent is thereby sufficiently described. In such cases, it is not indispensable to qualify both the act and the intent. State vs. Bradford, 33 Ann. 921.
It is true that the information is drawn in a very inartistic manner, but the argument of defendant’s counsel, predicated on the idea that the words “kill” and “slay” arc not synonymous, is somewhat hypercritical.
2d. There is no merit in the second ground of the motion. This Court has held, on good authority, as well as on reason, that the omission of this averment is no ground for a motion in arrest of judgment. State vs. Vincent, 36 Ann. 771.
We have also held, and we reaffirm the ruling, that the omission of the words “ in the peace of the State then being,” was covered by section 1063 of the Revised Statutes, which provides that “no indictment for any offense shall be held insufficient for want of the averment of any matter unnecessary to be proved,” and that such an averment was not necessary; hence the omission of the same does not vitiate the indictment. State vs. Simeon, 36 Ann. 923.
We therefore conclude that an objection on that ground does not involve a matter or defect of substance, and that it cannot avail the defendant under a motion in arrest of judgment.
Judgment affirmed.