
    Evans vs. The State.
    A constructive assault, such as besetting the house of another, is not such an assault as is meant by the 52d section of the act of 1829, ch. 23. It must be an actual assault on the person, coupled with the felonious intent, to make out the offence described in that section.
    Gray Garrett, attorney general of the 12th solicitorial district, at the instance of Isaac A. Miller, prosecutor, preferred a bill to the grand jury of Sevier county at,the August term, 1838, of the circuit court of said county against'John Evans for an assault upon said Miller with intent to commit murder in the first degree.
    The first count in this bill charged that Evans, on the 6th day of August, 1838, in the town of Sevierville, in the county of Sevier, made a wilful, felonious and premeditated assault upon Isaac A. Miller with intent to commit murder in the first degree.
    The second count was in the words following, to wit: “The grand jurors aforesaid, uphn their oaths aforesaid, do further present that heretofore, to wit, on the day and year last above mentioned, at Sevierville, in the said county of Sevier, John Evans, late of said county of Sevier, tailor, with force and arms feloniously, wilfully and maliciously did assault one Isaac A. Miller, then and there being' in the peace of the State, by then and there in the night time arming himself with a pistol charged with gun-powder and leaden ball and besetting the dwelling house of the said Isaac A. Miller, the said. Isaac A. Miller and his family then and there residing and dwelling in said house, with intent him the said Isaac A. Miller feloniously, wilfully, premeditatedly and deliberately and of his malice- aforethought then and there to kill and murder in the first degree, to the evil example,” &c.
    The grand jury found a true bill against the defendant on the whole charge preferred against him. The cause was submitted to a jury, judge Powell presiding, at the same term.
    It appeared that the prosecutor, Miller, had a suit pending with one Dermon in the circuit court of Sevier county, and that Dermon had a subpcena served upon John Evans, defendant, commanding him to appear and testify in the cause; that in consequence of this Miller had written to the State of South Carolina and procured by mail the transmission of a record of the conviction of Evans for larceny in stealing a trunk, in which he was sentenced to receive twenty lashes. The contents of the record become public, and the fact of its arrival come to the knowledge of Evans. In some short time thereafter Evans left the country swearing that he would have satisfaction at some time. He was absent some three or four years and returned, calling himself Jones. He arrived in the town of Sevierville in the evening, called at a grocery, got some liquor, and enquired and ascertained the house where Miller and his family resided. He had a pistol, and swore that he intended to have Miller’s life. He went to the house of Miller at about the hour of twelve o’clock at night on the 6th August, 1833, and called. Miller’s wife got up and asked who was there and what he wanted. He said he was a traveller and wanted to see the gentleman of the house. Miller then got up, and before opening the door asked him his name; he said it was Johnson. Miller recognized his voice, and observed that he knew him and what he wanted. He then sent his negro after a gun. Evans fled. Miller and others pursued and arrested him. Evans drew a, pistol, but did not attempt to shoot.
    The defendant’s counsel requested the judge to charge the jury that a constructive assault by besetting the house was not such an assault as would support a conviction under the statute; but the court was of a different opinion, and charged the jury that if they believed the besetting of the house to have been made with the intent charged in the indictment they would be justified in finding the defendant guilty.
    The jury found the defendant guilty, and assessed his imprisonment in the jail and penitentiary house of the State at five years.
    A motion was made for a new trial and overruled. A motion was also made in arrest of judgment and overruled. The defendant appealed in error to the supreme court.
    
      
      Nelson, for plaintiff in error,
    
      Attorney General, for the State.
   Reese, J,

delivered the opinion of the court.

The question in the case before us is, whether the felony enacted by the 52d section of the act of 1829, ch. 23, is made out and established in proof by showing a constructive assault pr assault in law by besetting the house of another1? T.h,e sp.ctipn. enacts that whoever shall feloniously and with malice aforethought assault any person with intent to commit murder in the first degree, áse. The two consecutive sections, 53 and 54, create felonies for an assault upon the person with no other intent but to commit rape and robbery. As the principal felony in all these cases consists in actual yiolence and wrong done to the pprson, so the secondary of-fence enacted by the statute requires in each instance an actual and personal assault coupled with the felonious intent. The besetting the house of another is an assault in contradistinction to an actual assault, and when done with a felonious purpose merits severe punishment, but it is not the character of assault intended by the 52d section of the act of 1829. The circuit court held the law to be contrary to this opinion; fye therefore reverse the judgment and award a new trial,  