
    *AT A CIRCUIT COURT, AT GREENSBURGH,
    NOVEMBER 1801.
    CORAM, YEATES AND SMITH, JUSTICES.
    Respublica against Christopher Reiker.
    Indictment on the first clause of the 6th section of the act of 22d April 1794, against maiming, leaving out the words “ lying in wait,” or on the second clause, leaving out the word “voluntary,” is defective.
    Maihem. The indictment stated, that Christopher Reiker, late of, &c. on the day of &c. contriving and intending one David Hill to maim and disfigure, at township, in Westmoreland county aforesaid, with force and arms, &c. in and upon the said D. H. in the peace of God and of this commonwealth, then and there being, on purpose and of his malice aforethought, unlawfully and feloniously did make an assault, and the said C. R. with both his hands, the right eye of him the said D. H. on purpose, and of his malice aforethought, then and there, unlawfully and feloniously did gouge and put out, with an intention him the said D. H. in so doing, in manner aforesaid, to maim and disfigure: to the great damage of the said D. H. and against the peace, &c.
    Cited in 6 S. & R. 226 in support of the decision that an indictment for an assault and battery with intent to kill, is not vitiated by stating that the defendant did bite or cut off the ear, etc.; the assault and battery with intent to kill, being the offence which is punishable, and the injury inflicted merely a circumstance of aggravation.
    Messrs. Galbreath, Woods and Collins, pro repub.
    
    Messrs. Ross and Young, pro def.
    
   The court having heard four witnesses on the part of the prosecution, observed, that this indictment was framed on the Coventry act of 22 and 23 Car. 2, c. 1, except that very material words, lying in wait, (Cro. Arc. Comp. 268,) were omitted herein, which the evidence here would not warrant. Our act of assembly for the better preventing of crimes, passed 22d April 1794, (3 Dall. St. Laws, 601,) § 6, has defined the offences of maiming, in two independent clauses ; the first pursues the words of the British statute, with the insertion of the words “ on purpose;” the second, “whosoever shall voluntarily, maliciously, “ and of purpose, pull or put out an eye, while fighting or other“wise,” was made with the express design of putting a stop to this diabolical and savage practice. The indictment here has dropped the word “voluntarily,” and being defective on both clauses of the act, the judgment would necessarily be arrested, even if a conviction took place. The defendant must therefore be acquitted of this indictment, but must enter into recognizance with two sureties, to answer a proper charge at the next court *of Oyer and Terminer, and to keep the peace, and be of *283] good behaviour in the mean time.

Verdict non ml.  