
    William Jones vs. The State of Mississippi.
    In an indictment under the statute, (How. & Hutch. 698, § 33,) for an assault with intent to kill, the accused must be charged with having made an assault on a certain person, with intent to kill that person ; and in default of such allegation in the indictment, a verdict against the prisoner of guilty will be arrested.
    Where a verdict of guilty of an assault with intent to kill, has been found against an accused, upon a defective indictment, and the court below refuses to arrest the judgment, this court, in arresting the judgment and setting aside the proceedings in the court below, will remand the prisoner to jail, that a new indictment may be preferred against him.
    
      In error from the circuit court of Jasper county; Hon. Armis-tead B. Dawson, judge.
    William Jones was indicted for an assault with intent to kill, in the following words, viz.: “ That William Jones, late, &c., on the first day of May, in the year of our Lord eighteen hundred and forty-five, in the county aforesaid, with force and arms, &c., with a certain gun, then and there loaded with powder and divers leaden shot, which he, the said William Jones, in both his hands, then and there had and held, at and against one Cornelius L. Mixon, then and there being, feloni-ously, wilfully, maliciously, and unlawfully, did shoot with intent then and there, and thereby feloniously, wilfully, maliciously, and unlawfully, and of his malice aforethought, to kill and murder, contrary, &c.” The 'prisoner pleaded not guilty; was tried, and found guilty. He moved in arrest of judgment; and on the motion being overruled, prosecuted this writ of error.
    
      Heyferow and Street, for plaintiff in error.
    There were two substantial errors in the indictment. 1. It does not show with any degree of legal certainty, that defendant below intended killing Cornelius L. Mixon, the prosecutor. On this point they cited Gould’s PI. 87, § 62, and authorities cited. 2. It does not appear by any averment therein, that the gun mentioned, was so loaded as to be capable of doing the averred mischief., The very gist of the supposed offence is, that defendant shot the gun with the intent to kill and murder Cornelius L. Mixon. This is the very essence of the crime, and without which none was committed, and it must therefore be alleged with the highest degree of legal certainty. It does not appear, by any allegation therein, that Mixon was stricken, much less wounded by the shot, and, therefore, that defendant below had any such intention, cannot be inferred from any such averment. It appears that he shot at Mixon with intent to kill and murder, but it does not appear with any certainty that he shot at Mixon with intent to kill and murder Mixon. Vaughan v. The State, 3 S. & M. 653; 3 Chit. Crim. Law, 791, n. a; Russ. & Ry. C. C. 377.
    
      
      John D. Freeman, attorney general, contra.
    
    The indictment charges, that the defendant shot at the said Cornelius L. Mixon, with intent to kill and murder, and hence it is clear that Cornelius L. Mixon was the person whom he intended to kill and murder. The words omitted are formal and not substantial, and if inserted, would add nothing to the certainty of the charge.
   Mr. Justice Thacher

delivered the opinion of the court.

This is an indictment for an assault with an intent to kill, framed under the statute, (H. & H. 698, sec. 39,) which runs against any person shooting at another, with intent to kill such other person.

The point made here is upon a motion in arrest of judgment, for defects in the indictment, overruled in the circuit court. The indictment alleges, that the said William Jones, &c., “with a certain gun, then and there loaded with powder and divers leaden shot, which he, the said William Jones, in both his hands then and there had and held, at and against one Cornelius L. Mixon, then and there being, feloniously, wilfully, maliciously, and unlawfully, did shoot with intent then and there, and thereby feloniously, wilfully, maliciously, unlawfully, and of his malice aforethought, to kill and murder, contrary to the form of the statute,” <fcc.

The objection is, that the intent is not sufficiently averred in this, that the act is not alleged to have been done with the intention of killing the said Mixon or any other person.

The statute, (H. & H. 698, sec. 33,) quoted above, specifies the intent to kill the person shot at, as one of the intents made essential to constitute the offence. Such being, probably, the main intent in this case, the indictment should have charged that intent. Rex v. Gillow, Moody, 85; Rex v. Duffin, Russ. & Ry. 365.

The indictment is uncertain. There is no allegation of an intent to kill any particular person. In Rex v. Holt, 7 Car. & Payne, 518, the indictment, framed under the statute 9 Geo. 4, c. 31, § 11, 12, was for shooting “at one John Hill, with intent to murder the said John Hill.” The jury found the prisoner guilty of shooting at Mr. Hill, with intent to do Mr. Lee some grievous bodily harm. The court ordered a verdict of not guilty to be recorded. Tó come, therefore, within this statute, we think the accused must be charged with having shot at a certain person, with intent to kill that person.

The indictment is vicious, and the motion in arrest of judgment should have been sustained in the circuit court.

The judgment of the circuit court is reversed, and judgment is arrested in this court upon this indictment, and the proceedings in the circuit court set aside. 1 Chit. Crim. L. 304, 443, 663; Barb. Cr. Trials, 331; H. & H. 725, sec. 19.

But the accused cannot be set at liberty, but the same proceedings must be had again under a new indictment in the circuit court of Jasper county, to the jail of which county he must be remanded, if he make default in giving bail. H. & H. 669, sec. 27; Ib. 725, sec. 19.  