
    THE STATE OF NEVADA, Respondent, v. CHARLES F. JOHNSON, Appellant.
    Indictment — Misstatement op Legad Appeddation op Grime. Where, after the amendment of the crimes act, substituting “ assault with intent to MU” (Stats. 1873, 119) for “assault with intent to commit murder” (Stats. 1861, 61), an indictment designated the offense charged as an “assault with intent to commit murder,” and specially charged an assault “ with intent to MU and murder,” and the accused was convicted of “assault with a deadly weapon with intent to inflict a bodily injury”: 1Teld, that the failure to state the legal appellation of the crime in the charging portion of the indictment was a defect of form and, no objection having been taken by demurrer, could not have prejudiced the defendant.
    Assault with Intent to “Kidd and Murder” — Surpdusage. Where an indictment in setting out an assault with intent to kill charged an ‘ ‘ intent to MU and murder ’ ’: Seld, that as there was no statutory offense of an attempt “ to MU and murder ” or “ to murder,” the words “and murder” were unmeaning and should be rejected.
    Objection to Indictment por Charging Two Oppenses — Demurrer. An objection to an indictment, that it charges more than one offense, should be taken by special demurrer.
    Appeal from tbe District Court of tbe First Judicial District, Storey County.
    Tbe defendant, having been convicted of tbe crime of assault with intent to commit bodily injury, was sentenced to confinement at bard labor in tbe State prison for tbe term of two years. He appealed from tbe judgment.
    
      H. _H. Taylor, for Appellant. •
    I. An indictment under a statute must follow tbe statute strictly, and recite it substantially. Neither tbe words contra formam statuti, nor any periphrasis, intendment, or conclusion will make good an indictment which does not bring tbe fact prohibited, in tbe doing of which tbe offense consists, within all tbe material words of tbe statute.- 1 Hale’s P. C, 517; 2 Hale’s P. C. 170; 2 Hawk. P. C., Oh. 25, Sec. 110; 1 Wharton’s Am. Crim. Law, Sec. 364, and cases there cited.
    II. There is a substantial difference between “intent to commit murder ” and “intent to kill.” The latter may exist where the party intends only such killing as amounts to manslaughter. 1 Bishop Crim. Law, sec. 667, note 1; State v. Nichols, 8 Conn. 496; Nancy y. State, 6 Ala. 483; State v. Burns, 8 Ala. 313; Beasley v. State, 18 Ala. 540; Seitz y. State, 23 Ala. 42; Ogletree y. State, 28 Ala. 693; Oommonw. y. McLaughlin, 13 Cush. 615; Iüe»v. Gurran, 3 Carr. & P. 397; Bex v. Goe, 6 Carr. & P. 403; Bex y. Howlett, 7 Carr. & P. 274.
    III. There has been in this State, since March 4, 1873, when section 47 of the act of 1861 was repealed, no such public offense as “an assault with an intent to commit murder.” But it is clear that an indictment which charges “an assault with intent to kill and murder,” is an indictment charging ‘ an assault with an intent to commit murder. ” Murder includes killing; but killing is not necessarily murder. “Murder” is therefore the stronger expression; consequently it cannot be rejected as surplusage. Surplusage in pleading is redundancy — it is matter which adds nothing to the force of the pleading. If there be surplusage in the phrase “with intent to kill and murder,” it is to be found in the word “kill.” Under the law of 1861 this indictment would undoubtedly have been good. It would not have been good under that law if the words “and murder” are surplusage. But they are not surplusage, being of the essence of the offense charged.
    
      L. A. Buckner, Attorney General,' for Respondent.
    I. The words used in the indictment are those of the statute; “An assault with intent to kill;” but the words “ and murder ” were uselessly added, but did not vitiate tbe pleading, or make it charge two separate public 'offenses. It is a rule of extensive application with reference to written instruments, and in tbe science of pleading, that matter wbicb is mere surplusage may be rejected, and does not vitiate tbe instrument or pleading in wbicb it is found. Tbe offense charged is not murder, because no death is stated; on tbe contrary a mere attempt to commit a public offense is stated. It is not an assault to commit murder, because there is no such statutory offense as an assault to commit murder. It is therefore certain tbe district attorney did not intend, by tbe use of tbe conjunction, “and,” to couple such offense with tbe public offense of “an assault with intent to kill, ” wbicb was tbe offense be clearly intended to charge in tbe indictment, and did charge. If there bad been any such offense as “an assault to commit murder,” then it is probable tbe word “ and ” might have been regarded as connecting two phrases; for tbe words quoted last would have been a technical phrase, and construed as such, but not being technical they are to be construed in their usual acceptance.
    II. If tbe indictment states facts sufficient to constitute a public offense, although it may charge more than one offense, it can only be taken advantage of on special demurrer.
    III. Tbe preamble of tbe indictment is mere matter of form. In The State v. Anderson, 8 Nev. 256, it is said “that part of tbe indictment charging tbe defendant with tbe commission of a crime by name * * * is simply formal, and could be omitted entirely,” &c. It has been so held frequently in California. People v. War, 20 Cal, 117; People v. Beatty, 14 Cal. 566.
   By the Court,

Belknap, J.:

The legislature of 1873 amended section forty seven of the crimes act of 1861 by substituting for the offense, “ assault with intent to commit murder,” that of “assault with intent to kill.” Stats. 1861, 64; Stats. 1873, 119. Subsequently the defendant was charged by indictment with ‘ ‘ an assault with intent to commit murder.” The specific accusation reads: “that on the twenty-first day of April, A. D. 1873, or thereabouts, at the County of Storey, State of Nevada, without' authority of law, and with malice aforethought, with a deadly weapon, to wit: a knife, the said Charles F, Johnson, then and there being armed, did, without authority of law and with malice aforethought, make an assault in and upon one Wm. H. Virden, with intent to kill and murder the said Wm. H. Virden, all of which is contrary,” &c. No objection was interposed to the indictment until a motion was made to arrest judgment upon a verdict of guilty of an assault with a deadly weapon with intent to inflict a bodily injury, no considerable provocation appearing. The motion was rested upon the ground that the facts stated in the indictment do not constitute a public offense. The district court denied the motion. Defendant appeals from the judgment.

The failure to state the legal application of the crime in the charging portion of the indictment is a defect of form, and could not have prejudiced the defendant. State v. Anderson, 3 Nev. 256; People v. Phipps, 39 Cal. 326. The district court had jurisdiction over the subject of the indictment, and the judgment cannot be arrested if the facts stated constitute a public offense. Stats. 1861, 466.

The objection urged upon this point is in stating the assault to have been committed “ with intent to kill and murder. ’’ There is no statutory offense in this State designated “ assault with intent to kill and murder,” nor “ assault with intent to commit murder.” The words “and murder,” are unmeaning in the indictment; rejecting tbem, an assault with intent to kill is sufficiently described. If, however, “an intent to kill,” and “ and'intent to commit murder” were distinct offenses, and the indictment charged more than one offense, objection should have been taken by special demurrer. Stats. 1861, 465, Secs. 286, 294.

Judgment affirmed.  