
    Ainsworth v. The State.
    The indictment charged that the prisoner, “ with force and arms in the county aforesaid, in and upon the left arm of him the said Alson Shelby, then and there feloniously and maliciously did, with a certain drawn knife, stab and wound, with intent, then and there feloniously, wilfully and of his malice aforethought, the said Shelby to kill and murder;” held that the. indictment was bad,..because it did not alledge that the accused did assault and beat, and because it did not charge the instrument to be a deadly weapon.
    
    ERROR from the county of Clarke.
    The plaintiff in error was indicted under the act of 1839, in the foliowingrwords, to wit: “ That Sampson Ainsworth, late of the county aforesaid, laborer, on the 20th day of September, 1839, with force and arms in the county aforesaid, one Alson Shelby, in and upon the left arm of him the said Alson Shelby, then and there feloniously and maliciously did, with a certain drawn knife, stab and wound, with intent, then and there, feloniously, wilfully, and of his malice aforethought, the said Alson Shelby to kill and murder, contrary to the form of the statute, &c.”
    The language of the statute is as follows, to wit: “ Every person who shall be convicted of shooting at another, or of attempting to discharge any kind of fire-arms, or any air-gun, at another, or of any assault and battery upon another, by means of any deadly weapon, or by such other means or force as was likely to produce death, with the intent to kill, maim, ravish or rob such other person, or in the attempt to commit burglary, larceny, or other felony, &c. shall be punished by imprisonment,” &c.
    Forrester, for plaintiff in error.
    There is no such offence as charged known to our criminal code. The offence at common law was an assault with intent to kill, &c. The only charge in the penitentiary code is an “ assault and battery upon another, by means of any deadly weapon, or by such other means or force as was likely to produce death, with the intent to kill, &c.” Howard and Hutchinson, p. 698, sec. 33.
    1st. There must be an assault and battery. The words stabbing and wounding, are not descriptive of the offence contained in the statute, although stabbing and wounding, under certain circumstances, may be an assault and battery, stabbing and wounding where due caution is used, without any intention of violating the peace, does not amount to an assault and battery, yet there are many other modes of committing an assault and battery besides stabbing, &c.: even if the words were synoni-mous, it would be fatal, where technical words are used in the statute, for in that case, no words can be substituted, because no others can be exactly descriptive of the offence. 1 Chitt. C. Law, margin p.283, and note A. The United States v. Batchelder. Same case reported in Gallison’s United States’ Rep. 18. 1 Haywood, 403. 9 Pickering. 143. 6 Am. Com. Law Rep. 12, letter B. 11 Ce. 589.
    2d. The offence must be committed with a deadLy weapon, or such other means or force, as was likely to produce death.
    The indictment must show the weapon used to be deadly or other means or force as was likely to produce death; this it does not do. It only shows that with a certain drawn knife he stabbed and wounded him on the left arm, but does not aver the knife was a deadly weapon, or that such other means or force were used, as was likely to produce death. Starkie’s Criminal Pleading, 244, Gallespie’s case.
    In setting out an offence against a statute, the defendant must be brought within all the material words of the statute; and nothing can be taken by intendment. 6 Am. Com. Law Rep. 34, letter A. 1 Baily S. C. Rep. 144.
    All knives are not deadly weapons, nor would the use of one not calculated to produce death, come within the purview of the statute. Starkie’s Crim. Pleading, 249.
    The caption of the indictment is defective in stating that it was found in a circuit court of law, of Jasper county. There is no such court known to the law of this state. 15 sec. Constitution, old revised code, 101.
    Although the caption is no part of the indictment, the caption must show with sufficient certainty the court before whom it was found, so it may be seen the court had jurisdiction of the offence charged. 6 Am. Com. Law Rep. 12 and 13, letter C, 2 n. In the caption to the indictment, nor even in the caption to the record, does it appear the grand jury were then and there sworn; it appears they were sworn, but the words “ then and there” are omitted; this is fatal to the indictment in arrest of judgment. ■ 3 Johns. Cases. The People v. Guernsey, page 266, and authorities there referred to.
    A. L. Hays, on the same side.
    Collins, Attorney General.
    The first cause for quashing the indictment, is that it states the grand jurors for the state of &c., instead of the grand jurors of the state, &c. This is not error. See Arch. Cr. Plead. 418; see form in Arch. Cr. Plead. The words grand jurors for the state, &c.,by legal intendment, mean of the state, &c.
    Courts of justice are disposed to relax the rigor of the common law, and ancient forms, where no injury can possibly result to the liabilities or rights of the accused. See Byrd v. State, 1 Plow. 172. The courts of this state cannot possibly issue a venire facias, for jurors, out of the county in which the court is holden. So in this case, the grand jurors were the grand jurors of the state of Mississippi, &c. See same book and page.
    The crime of stabbing with intent to kill and murder, is fully embraced in the act of the legislature of 1839, p. 119, sec. 36.
    The terms felony, and feloniously, apply to crimes, the punishment of which is death or confinement in the penitentiary. Acts of 1839, p. 170, sec. 24.
    The expressions in the indictment “ with intent to kill and murder,” convey only the idea of committing murder, and are not under the indictment double; duplicity in an indictment consists in charging the commission of two or more crimes, or the commission of one and the intent to commit another. See Arch. Crirn. Plead, page 54.
    The indictment is certain to a certain intent in general, which is all the law requires. See Arch. Cr. Plead, p. 43. Coke Lit. 303.
    By the act of 1839, p. 168, sec. 12, (last clause of the section,) it is provided that .two years shall be the shortest time in which a criminal shall be confined in the penitentiary. See Act 1839, page 163, sec. 3; and all the provisions under it.
    'If the court below fixes the time of" imprisonment shorter than that allowed by law, this court will not reverse the cause for that reason, but will pronounce such sentence as the court below should have given.
    There is no causé for reversing the judgment below. I think it must be affirmed, with the necessary alteration in the time of imprisonment. ' •
   Opinion of the court by

Mr. Justice Turner:

The exception to this indictment is, that the supposed offence, is a statutory offence, and not an offence at common law, and is not described in the substantial language of the statute.

It is §aid, in our law authorities, that it is in general necessary, not only to set forth on the record, all the circumstances which make up the statutable definition of the offence, but also to pursue the precise and technical language in which they are expressed. 1 Chitty Crim. Law, p. 283; and other authorities there cited. See also Starkie’s Crim. Plead. 248.

The statute speaks of an assault and battery, by means of a deadly weapon. This indictment does not state that there was.an assault and battery, neither does it state that the supposed stabbing, was with a deadly weapon. ’ The amount of .the charge in the indictment is that the accused stabbed and wounded Shelby rvith a drawn knife. ' The ’ indictment should have alledged that the accused did assault and beat, and it should also have alledged, that the assault' Avas with a deadly weapon.

The act aforesaid further provides that, if “ by such other means or force as was likely to produce death, with intent to kill, &c. shall be punished, &c.” '

If this clause is relied on, the samé particularity and certainty ? as to the assault'and battery, and the means used’, should be observed in the indictment. ■

Judgment reversed, and prisoner remanded for further proceedings in the court beloAV. ,  