
    ED. SMITH v. THE STATE.
    Jackson,
    September Term, 1875.
    CRIMINAL LAW. Malicious stabbing-. Instrument.
    Under an indictment for malicious stabbing it is not necessary to prove that the wound was inflicted by a sharp pointed or edged instrument, provided the flesh is penetrated. [See note 7 under sec. 6450 of the Code.]
    Cited with approval: Starks v. State, 7 Bax., 64.
    Cited and construed: Code (1858), sec. 4608; Shannon’s Code, sec. 6449. „
   Nicholson, O. J.,

delivered the opinion of the court.

Ed Smith was tried and convicted in the criminal court at Memphis, on an indictment for unlawfully and maliciously stabbing Annie Eisher, and sentenced to two years in the penitentiary.

The proof is, that Smith struck at Annie Fisher with a knife, and in throwing up her hand to- wand off the Mow, her band was out across the back thereof to the bone.

The question is, whether this proof supports the charge in the indictment of malicious stabbing. The indictment is founded on sec. 4608 of the Code [Shannon’s Code, sec. 6449], which provides that “any person who'unlawfully or maliciously shoots or stabs another, shall, on conviction, be punished,” etc.

Under the old authorities, under a charge of stabbing, proof of cutting with an edged instrument would not support a conviction — it was necessary that the proof should show that the wound was inflicted by a sharp-pointed weapon, to constitute stabbing.

But in the case of Starks v. The State, decided by this court at Nashville, 1874 [since published in 7 Bax., 64], it was held that the word “stab,” as used in sec. 4608, was intended to embrace any wound whether made by a pointed or edged weapon, provided the flesh is penetrated.

This is conclusive of the present case, as the proof fully sustains the verdict, and there is no- error in the charge of the court.

Judgment affirmed.  