
    The State v. Dave Thompson.
    Appeal—Aggravated assault.—An appeal cannot be taken by the State from, an order quashing an indictment as to the charge of aggravated assault, and while the case is still pending as to the charge of a simple assault.
    Appeal from Marion. Tried below before the Hon. James H. Rogers.
    Thompson was indicted, and the offense charged was, that on the 12th day of October, A. D. 1873, in the county and State aforesaid, one Dave Thompson did unlawfully, willfully, and by force of arms, make an assault upon the person of one Fred. Jefferson, and with a certain piece of steel, the same being then and there a deadly weapon, did strike him, the said Fred. Jefferson, with the intent to injure him.”
    Exceptions to the indictment, as to charge of aggravated assault, were sustained, and the District Attorney appealed.
    
      George Clark, Attorney General, for the State.
   Reeves, Associate Justice.

The judgment of the court recites that the defendant’s exceptions to the bill of indictment were sustained, as to the offense of an aggravated assault, but no further; and that the District Attorney excepted and gave notice of an appeal. There is no final judgment, and therefore no judgment from which the appeal can be prosecuted. It is still pending in the District Court, and until the final disposition of the case in that court, there is no ground for the appeal to this court. The bill is not quashed, nor is the defendant discharged by the action of the court.

We see no reason why it should be held that the indictment does not charge an aggravated assault and battery, as the offense is charged to have been committed with a deadly weapon. (Art. 2150, Pas. Dig.) But because there is no final judgment, the appeal must be dismissed.

Dismissed.  