
    Price v. The State.
    1. An indictment in which it is averred that P. assaulted and purposely-wounded B., with the intent to kill him, of which wound B. died, sufficiently charges that P. purposely killed B.
    2. A court of common pleas, held by a single judge, has power, under the act of 1875 (75 Ohio L. 47, § 8), to appoint an attorney to assist the prosecuting attorney in the trial of any case pending in such court; and the rule is not different in Hamilton county, although the prosecuting attorney and an assistant prosecuting attorney appointed under section 9 of the same act, be present and participate in such trial.
    8. The court should not appoint an attorney, under said section 8, to assist in the trial of one charged with crime, merely because the prosecuting attorney, the injured person, or his friends, request that such appointment be made, nor unless, in the opinion of the court, the public interest requires such appointment; but, where such appointment has been made, it will be presumed, in the absence of any showing to the contrary, that it was properly made.
    Motion for leave to file a petition in error to reverse .the judgment of the Court of Common Pleas of Hamilton county.
    On June 17, 1879, an indictment was returned to the Court of Common Pleas of Hamilton county, indorsed a true bill, in which indictment it is charged as follows :
    “ That George Price, on the 30th day of May, in the year 1879, with force and arms, at the couuty of Hamilton aforesaid, in and upon one Yillie Black, then and there being, did unlawfully, willfully, purposely, and feloniously, and of deliberate and premeditated malice, make an assault in a menacing manner, with intent then and there him, the said Yillie Black, unlawfully, willfully, purposely, and feloniously, and of deliberate and premeditated malice, to kill and murder; and that the said George Price, a certain pistol then and there charged with gunpowder and one leaden bullet, which said pistol, he, the said George Price, then and there in his hand had and held, then and there unlawfully, willfully, purposely, feloniously, and of deliberate and premeditated malice, did discharge and shoot off, with the intent aforesaid ; and that the said George Price, with the leaden bullet aforesaid, out of the pistol aforesaid, by force of the gunpowder aforesaid, by the said George Price then and there discharged and shot off as aforesaid, him, the said Yillie Black, in and upon the back of him, the said Yillie Black, then and there unlawfully, willfully, purposely, feloniously, and of deliberate and premeditated malice, did strike, penetrate, and wound, with the intent aforesaid, thereby then and there giving to him, the said Yillie Black, with the leaden bullet aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the said George Price, in and upon the back of him, the said Yillie Black, one mortal wound of the depth of three inches and of the breadth of half an inch, of which said mortal wound, he, the said Viilie Black, from the said 30th day of May,, in the year aforesaid, until the 3d day of June, in the year aforesaid, in the city of Covington, in the county of Kenton, State of Kentucky, did languish, and languishing did live, on which said 3d day of June, in the year aforesaid, the said Viilie Black, in the city of Covington, in the county of Kenton, State of Kentucky, of the said mortal wound,, died. And so the jurors aforesaid, upon their oaths and affirmations aforesaid, do say, that the said George Brice, him, the said Viilie Black, in the manner and by the means aforefaid, unlawfully, willfully, purposely, feloniously, and of deliberate and premeditated malice, did kill and murder,, contrary to the form of the statute,” etc.
    The indictment was found under the act of 1877 (74 Ohio-L. 244, § 1; Rev. Stat. § 6808), which provides that, “ whoever purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate any rape, arson, robbery, or burglary, kills another, is guilty of murder in the first degree,, and shall suffer death.”
    The defendant pleaded not guilty, and at his request the court appointed E. A. Guthrie and Walter Granger as hi.s counsel.
    The trial commenced December 8th, and progressed, from day to day, until December 17,1879, when a verdict was rendered finding the prisoner guilty of murder in the-first degree, and he was thereupon sentenced to be executed on May 28, 1880.
    In January, 1879, the judges of the Court of Common Bleas of Hamilton county, in joint session, appointed Miller Outcalt assistant prosecuting attorney for that county. The statute relating to assistants of prosecuting attorneys, passed in 1877, was so amended in 1878 (75 Ohio L. 47), as to read as follows:
    “ Sec. 8. The court of common pleas or district court may, whenever it is of the opinion that the public interest ■requires it, appoint an attorney to assist the prosecuting attorney in the trial of any case pending in such, court, and the county commissioners shall pay such assistant such ■compensation for his services as the court approves, and to them seems just and proper.”
    Section 9. “ In counties containing a population greater than one hundred thousand, the judges of the court of common pleas may appoint an assistant prosecuting attorney, at a yearly salary, not exceeding fifteen hundred dollars, to be fixed by the judges making such appointment; and said judges of the court of common pleas may, from time to time, appoint such special assistants, to aid the prosecuting attorney, as in their opinion the public business may require, which special assistants shall be paid out of the treasury of the county, on the warrant of the county auditor, such sum as the court may approve and order.” R. S. §§ 7196, 7197.
    Section 9 applies to Hamilton county.
    After the trial had commenced, Charles H. Blackburn was, on motion of S. H. Drew, prosecuting attorney, appointed by Judge Longworth, who presided at the trial, to assist in the trial of the case. To this the prisoner excepted. Blackburn assisted Drew and Outcalt in the examination of witnesses and argument to the jury.
    
      E. A. Guthrie, in support of the motion.
    
      George K. Nash, Attorney-General, and S. H. Drew, Prosecuti ng Attorney, contra.
    
   Okey, J.-

The questions presented have received that consideration which was demanded in view of the sentence in the court below. No part of the evidence or charge to the jury is before us. The reversal is sought upon two grounds.

It is objected, that the indictment contains no averment that the prisoner killed Black purposely. But it is charged that, with intent to kill him, the prisoner gave him a wound of which he died. As stated by Mcllvaino, C. J., in Rufer v. The State, 25 Ohio St. 464, 468, “It is sufficient that the facts constituting the crime be stated with certainty to a certain intent in general.” And as held in Loeffner v. The State, 10 Ohio St. 598, “ the intent or purpose to kill, which constitutes an essential element in the crime of murder, under the statute of this state, and an averment of which is necessary in an indictment for murder, need not be averred in the identical words of the statute.” We hold this indictment to be sufficient, and in so holding we are fully supported by the principle upon which Rufer’s and Loeffner’s cases were decided.

It is said that the court erred in appointing Charles H. Blackburn to assist in the prosecution. Where such appointment is made in the absence of statutory provision, the objection finds some support from Meister v. The People, 31 Mich. 99, and cases there cited; see also Wilson v. The State, 16 Indiana, 392; though the weight of authority seems to favor the existence of inherent power in the court to appoint such assistant. Dukes v. The State, 11 Indiana, 557; Tesh. v. Com., 4 Dana, 522; The State v. Bartlett, 55 Maine, 200; Staggs v. The State, 3 Humph. 372; Gillespie’s case, 3 Yerg. 325; Jarnagin v. The State, 10 Yerg. 529; Hopper v. Com., 6 Grat. 684. But here we are relieved of all difficulty on the subject, for section 8 of the act of 1878, already quoted, applies to all counties in the state; a single judge in Hamilton county has the same power tO' hold court and make such appointment that is possessed by common pleas judges in other parts of the state; and this appointment may fairly be regarded as having been made under that section.

• We are unwilling to say that the prosecuting attorney, the injured person, or his friends, may require the coui’t to make such appointment. On the contrary, the appointment should not be made in any case unless the due administration of justice requires it. But where the record is silent on the subject, we will presume that such appointment was properly made, as we will also presume, in the absence of any showing to the contrary, that the prosecution was conducted in a proper and not oppressive manner

Motion overruled.  