
    Cole vs. The State.
    _fl.n indictment for an assault with intent to murder is good, though it charge an assault and battery (or stabbing) with intent to murder — excess does not vitiate, unless it render the indictment uncertain, double, or repugnant.
    Verdict that defendant be imprisoned in the Penitentiary for three years — judgment that defendant be imprisoned in the Penitentiary for the term of three years from and after the commencement of such imprisonment: Held, That the judgment was responsive to, and followed, the verdict as to the term of imprisonment.
    In prosecutions for assaults with intent to commit murder, where the proof shows that it would have been murder had death ensued, that itself will be a sufficient ground for the jury to infer the existence of the actual intention to murder, as every one must be taken to intend the necessary consequences of his own act; it is not, therefore, necessary that the jury should be satisfied from the evidence ¿hat the defendant had a positive intention in his mind to commit murder at the time of the assault in order to convict him, as seems to have been held in Cruse’s case, S Car. §P. 541.
    In prosecutions for felonies, the defendant should be personally present in court when the verdict is rendered, and the sentence pronounced upon him.
    Where it does not appear from the record that he was present when the verdict was delivered, a new trial will be granted.
    But if present when the verdict was delivered, and absent when sentence of corporal punishment was pronounced, a new trial will not necessarily be granted; but the judgment will be reversed, and the cause remanded, with instructions to the court below to proceed to pronounce sentence upon the prisoner according to law, &c.
    
      Appeal from the Polk Circuit Court.
    
    Indictment for an assault with intent to commit murder, determined in the Polk Circuit Court, in September, 1849, before the Hon. Josiah Gould, Judge.
    Indictment, in substance, as follows :
    “ The Grand Jurors of, &c., duy selected, &c., upon their oath, present that William Cole, late of said county of Polk, on the 15th day of February, Á.D. 1849, with force and arms, within the body of the county of Polk aforesaid, in and upon one Thos. W. Yerdell, in the peace of God and the State of Arkansas, then and there being, feloniously, wilfully, and with malice aforethought, did make an assault, and he, the said William Cole, with a certain knife which he, the said William Cole, in his right'hand then and there had and held, the said Thomas W. Verdell, in and upon the left side near the left nipple of him, the said Thomas W. Verdell, then and there, feloniously, wilfully, and with malice aforethought, did stab, cut, and wound, with intent then and there, and thereby feloniously, wilfully, and of his malice aforethought, the said Thomas W. Verdell, to kill and murder, contrary to the form of the statute,” &c., &c.
    Count also for assault with intent to maim.
    The record shows the following proceedings upon the indictment:
    “ September Term, 1849 : First day. — Came the State, &c., and the said defendant, in proper person, and defendant, by his attorney, moved the Court to compel the plaintiff to elect on which count of the indictment she would proceed, &c., which motion the Court sustained, &c., and the plaintiff elected to proceed upon the first count, &c.; and thereupon said defendant was arraigned upon the first count of said indictment, and, for his plea, says he is not guilty, &c., to which plea the State, by her attorney, joins issue, &c.; and thereupon the said defendant, in his own proper person, in open Court, waived all his right to a copy of the venire facias in this case; and, to try said issue, a jury came, to wit: John Bull, áte., &c., twelve good and lawful jurors, &c., who were sworn, &c. And the jury having heard the evidence, &c., and there not being sufficient time for the argument of counsel, this case is ordered to be respited over until to-morrow morning, 8 o’clock.”
    
      “ Second day. — And now on this day was resumed the trial of this cause, and the jury, after hearing the argument, and the charge of the Court in relation to the law, retired to consult upon their verdict, and, in a short time, returned into the Court the following verdict, to wit: ‘We, the jury, do find the within named defendant, William Cole, guilty in manner and form as charged in the first count of the within indictment, and do assess his punishment at three years imprisonment in the Jail and Penitentiary house of the State of Arkansas. J. S. W — , Foreman. ’
    “ Whereupon, it is considered and adjudged, by the Court, that the said William Cole be imprisoned in the Jail and Penitentiary house of the State of Arkansas, for the term of three years, from and after the commencement of such imprisonment, for having assaulted one Thomas W. Yerdell with intent to kill and murder, in manner and form as charged in the said indictment, and sentence is passed upon the said William Cole accordingly, and it is further considered, by the Court, that the State of Arkansas have and recover of and from the said Cole all the costs in about,” &c.
    “Whereupon came the said defendant, by his attorney, and filed his motion for a new trial in this case, which motion is overruled by the Court; and thereupon the said defendant files his prayer for an appeal, (fee., which is granted,” &c.
    “ Whereupon came the said defendant, William Cole, and David Cole, &c., &c., who, in open Court, acknowledged themselves to be indebted to the State,” &c. Recognizance follows.
    The record further shows, by an entry as of the 3d day of the term, that defendant excepted to the decision of the Court in overruling his motion for a new trial, and took a bill of exceptions setting out the evidence; but as this Court have expressed no opinion as to the evidence, it is not necessary to state it here.
    Watkins & Couran and E. H. English, for the appellant.
    The judgment must be reversed, because the record does not show that the prisoner was personally present in Court when it was pronounced, (Kelly & Little vs. State, 3 Smedes & Mar. Rep. 518. 1 Chit. C. L. 695-6. 12 Wend. 344. .7 Cow. 525,) and the verdict set aside because he was not present when it was rendered. 1 Chit. Or. Law 636. State vs. France, 1 Tenn. R. 434. State vs. LIurlburt, 1 Root 90. Sneed vs. State, 5 Ark. R. 431. Dig. 412, sec. 164.
    The indictment is bad, as. it charges an assault and battery with intent to murder, whereas the statute {Dig. p. 331) describes the offence as an assault with intent, &c.; and if a battery has been committed, the defendant is really guilty of mayhem, {Dig. 329, 332,) and should have been indicted for maiming. See Arch. Crim. PI. 442. 2 Stark. Ev. 52. Also the cases of Robinson vs. State, 5 Ark. R. 659, and McCoy’s case, 3 Eng. 451, where the indictments charged an assault with intent to murder, and not an assault and battery with such intent, and were held good.
    The evidence must show that if death had ensued, it would have been murder, {McCoy vs. The State, 3 Eng. 451. 2 Stark. Ev. 52, note a); and the jury must be satisfied that the prisoner' had a positive intention to commit murder. Roscoe Cr. Ev. 776. Cruse’s case, C. 8 & P. 541. R. vs. Jones, 9 C. & P. 258. Roscoe 784. 34 Eng. C. L. R. 522.
    The term of imprisonment should have commenced from the time judgment was pronounced: the defendant being then in duress under the sentence. 3 Smedes & Mar. 518.
    Clendenin, Att. Gen., contra.
   Mr. Justice Scott

delivered the opinion of the Court.

It has been urged, with much earnestness, in this case, that the indictment is bad because the defendant is charged with an assault and battery with intent to murder, and not with a mere assault with that intent, and it is submitted that this excess changes the character of the offence, and it thereby defeats the indictment.

Our first inquiry, then, must be of this objection. And, as a general proposition, it would seem clear that a mere extended and minute narration in an indictment of the actual facts that have transpired in the commission of an offence could not of itself make the indictment vicious; and that, unless there was something in the manner of the narration to make the indictment bad by reason of some defect as to this, as, for instance, to make it uncertain, double, or repugnant, it would be as good when the facts had been narrated with unnecessary minuteness, as if only such leading facts had been charged as were necessary: and equally clear that the defendant could not by possibility be injured by any such minuteness of narration; on the contrary, would be benefited in being thus more distinctly and particularly advised of the specific charge against him, and thereby enabled the better to prepare for his defence, and afforded more certain means of pleading, to a subsequent prosecution grounded upon the same facts, a former acquittal or conviction, and could claim, at most, under such circumstances, that the State should be held to proof of the charge as laid.

’When by any unlawful act an individual has violated the criminal law, it is not for him, but for the State, to elect what particular offence she will proceed for with a view to punishment according to the laws of the land. He can claim only that he be prosecuted for the charge made against him according to law, and that he be not twice prosecuted or put in judicial jeopardy for the same act. It is not for him to say, when the act done may properly ground any one of several prosecutions, that this or that shall be set on foot against him, because in such case he is equally obnoxious to all of them: but he is more than compensated for this privilege on the part of the State by the provisions in his favor in the bill of rights to which we have alluded.

Nor do these general principles apply only to offences which, in their nature, are included the one within the other, as the major includes the minor, but to all offences.

When, therefore, as it will be at once conceded, a party indicted for an assault with the intent to murder has no right to' claim that the State shall abandon that prosecution and proceed against him for the simple assault merely, can it be at all more reasonable that, when he has committed an act that will equally ground a prosecution for such an offence as well as for mayhem, he shall have any such right? Unquestionably no. And all that he can claim in either case, as we have already remarked, is, that he be charged, tried, and punished, according to the law of the land, for whatever offence the State may elect to proceed for in the premises, that the act he has done may lawfully ground.

If the act done will equally ground several prosecutions, the manner of narrating the facts in making the charge elected, mast be such as to indicate with precision for what offence the State proceeds, otherwise the indictment would be bad, and so it would in like manner be bad if it fell short of the requirements of the law in the proceedings elected and on foot, either in the matter or manner of presenting it. But it does not follow, from this, that, simply because in such a case the pleader had not been content with properly charging facts, but has gone beyond them, and indulged in unnecessary detail of the actual facts that transpired in the case, this would make the indictment bad; yet, doubtless, if this excessive narration were made in a manner to produce uncertainty, duplicity, repugnancy, or other material defect in a charge that would have been other-wise well made, the indictment would be thereby made vicious; but unless this should be the result such excessive narration could not by possibility should be productive of any thing beyond an obligation on the part of the State to produce corresponding testimony, and would not in all cases have that effect.

In the case before us, the excessive charge is that the defendant feloniously cut, stabbed, and wounded the prosecutor, and the substance of the whole charge is that he feloniously assaulted the prosecutor with the intent to murder, and incidentally feloniously cut, stabbed, and wounded him. This excessive matter, so far from being repugnant, is confirmatory of the antecedent charge of a felonions assault, and is, in effect, but a re-iteration of it because in its nature it includes the former and falls short of a charge of mayhem in wanting some of the ingredients of that offence, and therefore does not make the indictment double. Nor does it make the charge uncertain, because there is no such offence known to the law as an assault and battery with the intent to murder; and, therefore, when the charge is made in these terms, it is in legal effect but a charge of assault with that intent.

We are of opinion, therefore, that there is nothing in this objection. Nor was there any error in so much of the judgment of the Court as fixed the time for the commencement of the term of imprisonment in the Penitentiary. In this, the judgment was responsive to and followed the verdict.

There would seem to be more difficulty, at first blush, as to the point raised by counsel and sustained by Cruse's case, 8 Car. & Payne 541, that, as to the intent to commit murder, it is not sufficient that the offence would have been murder had death ensued; but. the jury must be satisfied that the defendant had a positive intention in his mind to commit murder at the time of the assault. But, upon examination, the grounds of this question will be found to be a mere abstraction with respect to the offence of an assault with intent to murder, because that class of cases where in actual murder the offence by possibility could be perpetrated without the existence of a clear and positive intention of fact to kill — such as cases of excessive chastisement with means not calculated to produce death — would never be the subject of prosecution for assault with intent to kill; and, therefore, it is sufficient for us to say, as to this point, as was held by the Court in the subsequent case in England of Regina vs. Jones, 9 Car. & P. 258, that in every case of a prosecution for assault with intent to murder, where the proof shows that it would have been murder had death ensued, that itself will be a sufficient ground for the jury to infer the existence of the actual intention to murder, as every one must be taken to intend the necessary consequences of his own act.

The other two objections, however, touching the rendering of the verdict and judgment in the absence of the defendant, seem tenable and well supported by authority.

The statute provides that no indictment for a felony shall be tried unless the defendant be personally present during the trial. (Dig. 412, sec. 164.) And the act of the Legislature, approved the 18th December, 1848, defines felonies to be all crimes or of-fences which are punishable capitally or by imprisonment in the Penitentiary, or when any portion of the punishment is such. (Pamph. Acts, p. 28.) And the authorities are numerous and pointed that when any judgment of corporal punishment is to be inflicted on the defendant, he must be personally present in Court at the time of pronouncing the sentence. (1 Ch. Cr. Law 695, and cases there cited in notes. 7 Cow. R. 525, and note. 12 Wend. 849, and cases there cited. 3 Smedes & Mar. 518.) And this corporal punishment seems to mean any kind of corporal privation or suffering, which is inflicted by sentence directly by way of penalty for the offence, and consequently includes imprisonment as well as the pillory. (1 Ch. Cr. Law 799, 712.) It is in contradistinction to fine, (1 Salk. 56. Lofft 400,) and the power of sentencing in absence seems to be confined to cases of fine exclusively.

If, however, the verdict was delivered in the presence of the defendant, and the irregularity consists simply in pronouncing sentence in his absence, the consequence would not necessarily be the awarding of a new trial, but only a reversal of the judgment and a remanding of the cause with instructions to proceed to pronounce judgment in accordance with the verdict after having inquired of the defendant whether he had any thing further to say why the judgment of the Court should not be then pronounced, as was done in the case of Kelly & Little vs. The State of Mississippi, 3 Smedes & Mar. 518.

And the authorities are equally numerous, pointed, and respectable, that, in all cases of treason and felony, the verdict, whatever may be its effect, must be delivered in the presence of the defendant in open Court, and cannot be either privily given, or promuled, while^he is absent, and if he does not appear the jury must be discharged without rendering it. (1 Ch. Cr. Law 636. 1 Breese 109. Overton’s Tenn. Rep. 435. The People vs. Perkins, 1 Wend. 91.) And the defendant’s being but of bail ■does not alter the'case. State vs. Hulbert, 1 Root 91. Sneed vs. The State, 5 Ark. 432.

Although many of the ancient forms on trials have fallen into disuse in modern times, those touching the presence of the defendant, both at the time of the rendering of the verdict and judgment in treason and felonies, including, as they do, substantial rights — that of the right to poll the jury, the making of any proper objection to the recording of the verdict, and of an-severing further why judgment and sentence should not be pronounced — and designed, as they are, to throw additional safeguards around the proper administration of criminal justice in having the defendant and those who are to pass upon his case and pronounce the sentence of the law face to face, are not to be dispensed with.

This last objection, then, going deeper than the other, and affecting the verdict as well as the judgment, was sufficient to have authorized the Court below to grant a new trial, and in refusing the motion of the defendant for the new trial the Court below clearly erred. But, because the judgment must be reversed, and a new trial awarded for the error we have pointed out, and this case must again be put before a jury, we designedly refrain from examining the question raised upon the merits, as we cannot decide them,without, in some way or other, influencing the future trial.

Let the judgment be reversed, a new trial awarded, and the cause remanded to be proceeded with.  