
    United States v. Thomas W. Lyles.
    It is a misdemeanor at common law to persuade, instigate, and incite another to commit an assault and battery.
    The indictment charged that the defendant, “intending to disturb the peace of the United Slates in the said county, and particularly to cause and procure a certain James Jack, in the peace of God and of the United States then and there being, to be assaulted and beaten, did persuade, instigate, and incite and endeavor to hire and employ a certain Daniel Fowler and a certain Philip Vernon then and there being, to way-lay, assault, and beat the said James Jack then and there being, so that the said James Jack was hindered by the said attempts and endeavors, from going about his ordinary business, and other wrongs to the said James Jack, then and there did, to the great damage of the said James Jack, and against the peace and government of the United States.”
    
      Mr. Neale, for the defendant,
    moved to quash this indictment, because, as he contended, it is no misdemeanor to incite a person to commit a misdemeanor; and such misdemeanor is not charged in the indictment, and, in fact, was not committed.
    
      Mr. Key, for the United States, cited Rex v. Phillips, 6 East, 464 ; 2 Chitty, 235 ; Rex v. Higgins, 2 East, 5.
    The Court (Thruston, J., absent,) refused to quash the indictment, without prejudice to a motion in arrest of judgment.
    Verdict, guilty, and amerced by the jury $20.
    
      Mr. Neale, for the defendant, moved in arrest of judgment.
    
      Mr. Key, contra,
    
    cited 2 Chitty, Cr. L. 50, for the form of the indictment. 3 Bl. Com. 119, 120, and 4 Bl. Com. 149.
   The Court

(Morsell, J., not very clear, and Thruston, J., doubting, Cranch, C. J., not doubting,)

was of opinion that it is an indictable offence, overruled the motion in arrest.

(See Chitty’s General Practice, Appendix, II., that an attempt to commit a misdemeanor created by statute, is itself a misdemeanor. Rex v. Butler, 6 Car. & Payne, 368.)  