
    Francis Derieux v. The Commonwealth.
    - Criminal-Raw — Variance between Record of Examining Court and Indictment — Effect.—The record of the Examining Court shews that the prisonerwas charged with a felonious stabbing, with intent to kill. The Indictment contained four Counts, of which the first charged a malicious stabbing, with intent to kill; the second, a malicious stabbing, with intent to maim, disfigure, and disable; the third and fourth, an unlawful stabbing, with the same intents, respectively. This variance between the record of the Examining Court, and the Indictment, is no ground for quashing the latter.
    Same — Indictments—Surplusage—Effect.—If an Indictment charge that one feloniously did strike,cut, and stab another, with intent to kill, &c. although the words strike and cut are not in the Statute, yet the Indictment ought not to be quashed “because of the commixture of felony and misde-mesnor’' contained therein. Those words may be rejected as surplusage.
    This wás a petition for a Writ of Error to a judgment of the Superior Court of Green-brier, whereby the prisoner was sentenced to an imprisonment in the Penitentiary-house for the term of one year. The Indictment contained four Counts; the first charged that he did, at, &c. on, &c. feloniously, voluntarily, maliciously, and of purpose, make an assault on one Samuel M’Clung, a Deputy Sheriff for the said county of Greenbrier, then and there being, and then and there duly qualified, and acting as such, and in the due execution of his office, and that the said Francis Derieux, with a knife which he then and there had and held in his right hand, in and upon the left arm of the said Samuel, then and there feloniously, voluntarily, maliciously, and of purpose, did strike, cut, and stab, with intent to kill the said Samuel, &c. against the form of the Statute, &c. The second is also a Count for malicious stabbing, but lays it to have been done with intent to maim, disfigure, and disable. The third Count charges an unlawful and felonious stabbing, with intent to kill; and the fourth, an unlawful and felonious stabbing, with intent to maim, disfigure, *and disable. The language of the three last Counts is, in all other respects, like that of the first.
    The prisoner being brought before the Court for trial, moved the Court to quash the Indictment, on two grounds. 1. Because it did not appear by the record of the Examining Court, that the prisoner was remanded to this Court for the offences in the said Indictment alleged, but only for having feloniously, and contrary to the Act of Assembly, stabbed said Samuel M’Clung, with intent to kill him. 2. That all of the said Counts contain a commixture of mis-demesnor and felony. The Court over-ruled the motion, and the prisoner, by his Counsel, excepted.
    The prisoner then pleaded not guilty, was tried, and convicted of unlawful stabbing, with intent to maim, disfigure, and disable ; that is, he was convicted on the fourth Count only. He then moved in arrest of judgment on the same grounds on which he had before moved to quash, and his motion was overruled.
    The caption of the record of the Examining Court is in these words :
    “Virginia, Greenbrier county, to wit:
    “At a Court held in the said county, at the Court-house thereof, on the 19th day of July, 1823, for the examination of Erancis Derieux, on a charge of having feloniously, and contrary to the Acts of Assembly, stabbed, with intent to kill, one Samuel M’Clung, Deputy Sheriff, &c.” The judgment of the Examining Court is as follows: “It is therefore considered by the Court, that the prisoner is guilty of the offence with which he is charged, and that he be tried before the next Superior Court of Eaw to be holden for this county, &c. and he is remanded to jail.”
    The commixture of misdemesnor and felony, to which the prisoner objected, it is believed, arose from the use of the words “strike,” and “cut,” with the word “stab,” the two former words not being in the Statute, and, of consequence, the act of striking and cutting being only a misdemesnor at Common Eaw.
    
      
       Criminal Law — Indictments—Surplusage.—See footnote to Bennet v. Com., 2 Va, Cas. 235, citing the principal case. Tbe principal case is also cited in Davenport v. Com., 1 Leigh 594; Com. v. Adcock, 8 Gratt. 673; State v. Harr, 38 W. Va. 64, 17 S. E. Rep. 796. See monographic note on “Indictments. Infor-mations and Presentments" appended to Boyle v. Com., 14 Gratt. 674.
    
    
      
       Same — Same—Statutory Offence — Allegation. — In alleging the statutory offence it is generally necessary to describe the offence in the very language of the statute. State v. Meadows, 18 W. Va. 669, citing Howel’s Case, 5 Gratt. 664; Com. v. Woodson, 9 Leigh 669; Derieux v. Com., 2 Va. Cas. 379.
    
   Per Curiam.

The Writ of Error is refused.

Note (in edition of 1853). — In this Case the reasons for rejecting' the application for a writ of Error are not given, hut they seem to he obvious. 1. The record qf the Examining Court need not he as special as an Indictment. The prisoner was charged before the Examining Court with the fact of stabbing Samuel M’Clung, feloniously, and contrary to the Act of Assembly. That kind of stabbing, includes not only malicious, but unlawful; and includes not only stabbing, with intent to kill, but stabbing with intent to maim, disfigure, or disable. The record, then,' of the Examining Court might have omitted the intent with which the act was done, since that intent, as well as that of all the others, was included in the other broad words. Nor can the force of those broad expressions be diminished by the allegation that the fact was done with intent to kill. 3. The objection that a roisdemesnor was-mixed up in the Indictment, with a ielony, may he answered by the remark,. that the words “strike,” and “cut,” in the Indictment, may he re-j ected as surplusage.  