
    Henry Sharp v. The State.
    Iq an indictment for an assault with intent to murder, it is sufficient to describe the intent in these words: — “ With intent in and upon him, the said John F. Walton, then and there feloniously, willfully, and of his malice aforethought, to commit a murder.”
    Though in the indictment it be averred that the assault was committed with malice aforethought, yet the jury may convict, if the proof satisfy them the assault was committed with intent maliciously and • purposely to Mil, although they should find it was made without malice aforethought.
    If a father wantonly mate an assault upon a third person, and his son come 'into the affray, afterwards, to aid his father in the assault, on an indictment against the son for an assault with intent to murder, the jury cannot consider his relation to his father, nor the circumstances of peril in which his father was placed.
    This is an application for a writ of error to the Court of Common Pleas of Tuscarawas county.
    Thomas Sharp and his son Henry Sharp, were jointly indicted at the November term, 1850, of the court of common pleas of Tuscarawas county, for an assault upon John E. Walton, with the intent, “ feloniously, willfully, and of their malice aforethought,” the said Walton to murder; They were tried at the same term, and Thomas Sharp was found guilty of assault and battery only. Henry was found guilty of assault, with intent to kill, and sentenced to the penitentiary.
    The testimony which is incorporated in the bill of exceptions, though very voluminous, is, in substance, as follows:
    That the plaintiff in error is the son of said Thomas Sharp; that the said Walton, on the 13th and 14th September pre ceding the affray, had assaulted said Thomas, and threaten ed him with violence; that on the 15th Sept, said Thomas and Walton quarreled in reference to the previous assaults •of said Walton; that this quarrel was in the presence of plaintiff in error, and many other persons, in the open street, and in day time; that Thomas Sharp assaulted Walton with an iron poker; that Walton immediately drew a large knife „ and attempted to stab said Thomas Sharp; that plaintiff in error, at the time Walton was thrusting at his father with, the knife, interfered, and struck or caught Walton; that Walton then fled,,having received a knife wound, and that no knife was seen in the affray, except the knife ifl Walton’s hand, which he carried away with him, and retained throughout the affray.
    The counsel for defendants asked the court to charge the jury—
    1. That if they were convinced by the testimony that the said Henry Sharp made said assault and battery, without the. intent purposely, and of malice aforethought, to murder the said Walton, that they should find him guilty of an assault and battery only.
    2. That in inquiring for the intent with which said Henry assaulted said Walton, it was proper for the jury to consider the relation or kindred of said Henry to said Thomas Sharp, in connection with the condition and circumstances of his father, at the time when the assault was made by Henry.
    The court did charge as follows:
    1. That if the jury were convinced by the proof, that the-defendants, or either of them, had assaulted said Walton in the manner set forth in the indictment, with deliberate and premeditated malice, willfully and maliciously, with intent to murder, or had made such assault without premeditation and deliberation or malice aforethought, but willfully and maliciously with intent to murder, then they should find one or both said defendants guilty, as the proof might convince them of the guilt of one or both of them, notwithstanding the statutory distinction between murder in the first and second degree.
    2. That it was true, as a principle of law, that a son might justify an assault in defense of his father, if the father were-not in the wrong; but if said Thomas Sharp had wantonly-made the first assault upon Walton, and this fact should appear from the proof, then Henry, the son, could not avail himself of this relation in his defense, if it appeared from the proof that he came into the conflict for the purpose of aiding his father in an unlawful assault.
    Exceptions were taken to the charge of the court, and because of the refusal to charge as requested.
    Motions were also submitted for a new trial and in arrest of judgment.
    
      John A. Bingham and J. Q. Sanee, for plaintiff in error.
    We claim that the court of common pleas erred :
    1. In refusing to arrest judgment.
    2. In refusing a new trial, and
    3. In the charge to the jury.
    1. The arrest of judgment. The indictment is defective in this, that it does not charge and allege specifically, an intent to commit a murder, either in the first or second degree, as defined in the statute of Ohio. There are no offenses indictable in Ohio, except such as are made so by statute. An indictment under a statute must follow the statute strictly, and recite it substantially. 2 Hawk. P. C., ch. 25, § 110. The general rule as there stated, is, “ that neither the words contra for-mam statuti, nor any periphrasis, intendment, or conclusion, will make good an indictment which does not bring the fact prohibited in the doing of which the offense consists, within all the material words of the statute.” See also 1 Hale, P. C., 517 and 526; 2 Hale, P. C., 170; Foster 424; 1 Chitty Crim. L. 280, ’82.
    So, an indictment which may apply to either of two definite offenses, and does not specify which, is bad, for the reason that it leaves it uncertain what is really intended to be relied on to support "the accusation. Wharton’s Crim. L. 81; 1 Mood. C. D., 158, Rex v. Marshall.
    
    Now the words of the statute under which this indictment is framed, are, “ if any person shall- assault another, with intent to commit a murder,” not a murder at common law, for there are no common law offenses here but a murder as defined by the statute of Ohio. The indictment in this case charges an assault with intent “ to commit a murder, willfully, and of their malice aforethought.” This is a charge of murder at common law, but it is not a charge of murder either in the first or second degree, as defined by our statute. The words, “ of malice aforethought,” do not define murder in the first degree under our statute, because they do not necessarily import deliberation, nor do they define the second degree of murder under our statute, for they necessarily import premedi tation, while the statute declares the second degree of murder to be a killing “ without premeditation,” and the first degree to be a killing “ with deliberation.”
    Is it not clear that this indictment would be bad, if the charge were murder, instead of an assault with intent, etc., and if the words in the 17th section, “ a murder,” means a murder as defined by our statute, then, for the same reason, the indictment is bad in this case. We submit that an indictment under the 17th section, should charge either “ an assault with intent, purposely, and of deliberate and premedi tated malice to commit a murder,” or an assault “ with intent, purposely and maliciously, but without deliberation and premeditation to commit a murder.” Nor can the words, “ of malice aforethought,” be rejected as surplusage, for they constitute a substantive charge of premeditated malice, a necessary allegation of an indictment, charging an assault with intent to commit a murder in the first degree, and only defective by-reason of the omission to insert, also, the words, “ and with deliberation.”
    In the case of the Commonwealth v. Atwood, 11 Mass. Rep. 93, the court say, “ a substantive charge not sufficiently alleged in an indictment, can never be rejected as surplusage.”
    If the words be rejected, the indictment remains bad, for the reason that it does not define what degree of murder was intended by the assault. It will not aid this indictment to say, that the defect is immaterial, that the punishment is the same, whether the intent was to commit murder of the first or second degree. The punishment is the same in kind only, not in degree. The court have a discretion as to the term of imprisonment, and we suppose this discretion is given, and is-intended to be exercised, by reason of the fact, that an assault with an attempt to commit murder in the second degree, is less atrocious than an assault with intent, purposely and of deliberate and premeditated malice, to murder.
    2. The refusal to grant a new trial. To sustain this verdict, the testimony must show that, had death ensued from the alleged assault, the offense would have been murder, and the intent, as it forms the whole gist of the offense, must be proved as laid. Wharton’s Crim. Law 316; 2 Term. Rep. 6; State v. Negro Bill, 3 Harrington 571; 2 Stark. 52; 1 East, P. C., 411; Archbold’s Crim. Pld. 432.
    All the evidence in the case, is upon the record, and it leaves-no doubt that this assault was the result of a sudden quarrel between Thomas Sharp and Walton, and that the plaintiff in error engaged in the affray, only when his father was in imminent peril at the hands of Walton. The conclusion cannot well be resisted, that had Walton died of this assault, the offense of the plaintiff in error would, at most, have been manslaughter, a killing upon a sudden quarrel, in heat of blood, and in defense of his father, in peril of life or limb. If, in case of death from this assault, the offense of .plaintiff in error would have been only manslaughter, then, upon all authority, the verdict is wrong, and the court erred in refusing a new trial.
    3. The charge to the jury. The court erred in charging “ that the jury might return a general verdict of guilty, although the proof should convince them that the assault was made without the intent of malice aforethought to commit a murder.” If the allegation of this indictment, that the assault was with intent of malice aforethought to murder Walton, be a substantive allegation, as we have shown it is, the state was bound to prove it as laid, though defectively set forth, and the court erred in charging that the jury might disregard it. In the case of the United States v. Porter, 3 Day’s Cases 283, the court held, that an allegation not impertinent to the cause, must be proved, though the prosecution might have been sujoported without such allegation. We claim that the allegation was “ pertinent to the cause,” though defectively set forth, as a part of the necessary words in a charge of assault with intent to commit a murder in the first degree.
    The court further erred in charging that the jury in determining the intent with which plaintiff in error joined in the affray and assaulted Walton, should not take into consideration the fact that the father of plaintiff in error was, at the time, in imminent peril of great bodily injury or death, at the hand ot Walton. Had Walton commenced this affray, most clearly the plaintiff in error, by reason of his father’s peril at the time, from the assault being made upon him by Walton, would have been justified in killing Walton. 1 Hale, P. C., 484; 4 Black. 182 ; 1 Russell 542.
    As the facts are, however, in this case, although his father commenced an assault upon Walton, without sufficient provocation, yet the plaintiff in error was still bound to interfere for the defense of his father, and if he carried the interference for defense so far as to have killed Walton, it would have been only manslaughter — a killing upon a sudden quarrel, and in heat of blood. It is well said by Hale, “ that in mortal combats, upon sudden quarrels, it mattereth not who gave the first blow.” 1 Hale, P. C., 456; and see Foster 295.
    Hence it was, that on behalf of the plaintiff in- error, we asked the court to charge that, in passing upon the intent with which plaintiff in error assaulted Walton, they should consider the great peril of his father at the time. This the court refused to do, and gave the charge as above stated, adding that “ if the father commenced the assault, (which was not denied) the son, by joining in the affray, would be aiding his father in an unlawful assault.”
    It was a fact clearly proved, that his father was, at the time, in peril, from Walton; was it not the right and duty of the son to interfere — not to aid a further assault upon Wal-ton — but to protect and save his father from great injury— and was it not exclusively the province, and clearly the duty of the jury to determine whether the plaintiff in error joined in that affray to defend his father merely, or with intent to commit a murder, as alleged against him ?
    But if the charge of the court be right, then it follows that, if a father strike the first blow upon a sudden quarrel, and thereby put himself in peril of immediate death from the attack of his adversary, a son, who witnesses the contest, must look on with cool resignation, while his father is being cut to pieces, lest by coming to his father’s relief, in the language of the court, he aid in committing “ an unlawful assault.’’
    If this be law, it contravenes alike the instincts of nature, the duties of humanity, and the deductions of reason.
    This novel ruling of the court has worked a result as novel. The father who commenced the affray is acquitted, while the son, who obeyed the stern mandate of nature, and the holy impulse of filial affection, in coming to his father’s defense, is convicted and sentenced, as guilty of an assault, with intent of malice aforethought, to do a murder.
    
      James Gray (prosecuting attorney), for the state, submitted the case without argument.
   Avery, J.

This case has been examined upon an application for a writ of error to the court of common pleas for Tuscarawas county.

An indictment was found by the grand jury, at the November term, 1850, of the said court, against Thomas Sharp and said Henry Sharp, for an assault with an attempt to murder John E. Walton.

The defendants were tried at the same term, by a petit jury, who found said Henry guilty, as charged in the indictment, and said Thomas guilty of an assault and battery only.

The counsel, in behalf of Henry Sharp, asked the court upon the trial, to give certain instructions to the jury, which the court refused to give, whereupon the counsel excepted; they excepted also to certain instructions which were given.

The counsel for Henry Sharp, after the verdict was returned, moved the court to grant him a new trial, because the verdict was against the evidence, and because the court erred in their charge to the jury.

The evidence is set out in the bill of exceptions, and a copy given of the instructions asked, as well as of the instructions actually given.

The first- count in the indictment charges the offense in the following words, to wit:

“ That Thomas Sharp,, late of the county of Tuscarawas aforesaid, and Henry Sharp, late of the county of Tuscarawas aforesaid, on the fifteenth day of September, in the year of our Lord one thousand eight hundred and fifty, with force and arms, in the county of Tuscarawas aforesaid, in and upon the body of one John F. Walton, then and there being, unlawfully did make an assault, and him, the said John F. Walton, then and there did beat, wound and ill-treat, with intent in and upon him, the said John F. Walton, then and there feloniously, willfully, and of their own malice aforethought, to commit a murder and other wrongs, etc.”

The intent is described in the second ' count as follows: With intent him, the said John F. Walton, then and there feloniously, willfully, and of their malice aforethought to kill and omurder.”

After an examination of the evidence as shown by the bill of exceptions, the court can find no error in the refusal to grant a new trial on the alleged ground, that the verdict was against the evidence.

The first instruction requested for the jury was this : “ If they were convinced by the testimony, the said Henry Sharp made said assault and battery, without the intent purposely, and of malice aforethought, to murder said Walton, the jury should find said defendant guilty of an assault and battery only.

This instruction the court refused to give, but charged the jury, if they were convinced by the proof, that the defendants, or either of them, had assaulted said Walton, with deliberate and premeditated malice, willfully and maliciously, with intent to murder, or had made such assault without premeditation and deliberation, but wilfully and maliciously, with intent to murder, then the jury should find one or both guilty, as the proof might convince them. This was instructing substantially in the words of the statute, as found in the two sections defining murder in the first and second degrees. Swan’s Statutes 229.

The charge was doubtless right, in holding that by the law, under which -the defendants were prosecuted, the jury might convict them of an assault with intent to murder, whether it was murder in the first or second degree ; and in the opinion of this court, the words used in the indictment to set out the intent, could not limit the power or obligation of the jury so to convict.

There was no error in this charge of the court, nor in the refusal to charge.

The next instruction requested was in these words: “ That in inquiring for the intent with which said defendant, Henry, assaulted said Walton, it was proper for the jury, and they should consider the relation or kindred óf said Henry Sharp to the said Thomas Sharp, in connection with the condition and circumstances of his father, the said Thomas Sharp, at the time when the said assault was made by the said Henry.” Which charge the court refused to give.

A majority of this court find no error in the refusal to give the charge as requested. We do not deny the principle applying to some of the natural and civil relations, which is held to furnish an excuse to persons under certain circumstances, and an exemption from civil punishment, because they are so related. It is conceded that parent and child, husband and wife, master and servant would be excused, should they even kill an assailant in the necessary defense of each other. But not unfrequently it will happen, from the facts proved upon the trial, that this principle can have no application, and therefore in such cases it need not be brought to the notice of the jury: for it could not be allowed properly to influence their verdict.

If a father and son combine to assail another, and commit violence upon his person, they may both stand in the relation of principal offenders, and be held liable in the same manner as if either had combined with any other person to commit similar violence. And in such case no intent to aid or defend each other on account of the relationship subsisting between them, can be inferred by court or jury. '

In the case under examination there was evidence, coming from Walton and others, that Thomas Sharp, the father, ran into the house and came out, bringing in his hands a poker; that he struck Walton several blows with it, one of which, according to the testimony of Walton, broke his arm. There is testimony also, from which an inference may be drawn, that at the time when the blows were inflicted by the father, the son was striking his knife into the body of Walton. It is true, it may be inferred from the evidence, that Walton was flourishing his knife at the same time, and even that he designed to use it against the father. Yet from the manner of the attack upon Walton, as described by the witnesses, the inference is still admissible, that the intent of Henry Sharp was not to defend his father, but in connection with him to make a murderous assault upon Walton. In such a case, their relationship would be a matter of no consequence in determining upon the guilt of either. Henry Sharp was at liberty, no doubt, to give evidence, that his intent really was, to protect his father from violence or imminent danger, and so he was at liberty, if he could find the proof, to show that the act was done with any intent, other than that alleged in the indictment, the intent to commit a murder. But the court, being in possession of all the evidence, may have considered, that there was no foundation for the claim put forth for him on-the trial. Whether, however, they so considered or not, they were not bound, nor at liberty, to assume in their charge, that the relationship ought, as a matter of course, to be taken into account by the jury; that in inquiring for the intent of Henry Sharp, when he made the assault, it was the duty of the jury to consider how he stood related to Thomas Sharp.

Error is not to be presumed, it must be shown. The call upon the court might have been easily put in a shape to secure a charge upon the point of law involved, to wit: the right of one of the prisoners, growing out of his relationship to the other. In such a case it is to be presumed the court would give the charge. A refusal to do so would furnish sufficient ground to reverse their judgment, but there was no error in the refusal to charge as above requested.

The charge which was actually given, after that request,. is as follows:

“ That it was true, as a principle of law, that a son might justify an assault in defense of his father, if the father were not in the wrong. But if Thomas Sharp had wantonly made the first assault upon Walton, and this fact should appear from the proof, then Henry, the son, could not avail himself of this relation, in his defense, if it appeared from the proof that he, Henry, came into the conflict for the purpose of aiding his father in an unlawful assault.”

We are all of the opinion that there was no error in this charge.

The counsel of Henry Sharp having failed in their motion for a new trial, urged before the court below a motion in arrest of judgment, and assigned the following reasons :

“ 1st. The indictment is defective in this, that it sets forth no crime known to the laws of the State..
“ 2d. It charges the assault upon Walton with intent feloniously, willfully, and of their malice aforethought, to commit a murder.
“ 3d. It does not charge a murder either in the first or second degree, as defined by the statute.
“ 4th. The indictment is in other respects illegal.”

We are of the opinion that the indictment is sufficient.

It was framed upon the 17th section of the act providing for the punishment of crimes. Swan’s Statutes 232. The offense embraced in this section is an assault with intent to commit a murder, rape, or robbery. The crime defined in the section, as an assault with intent to murder, is a single offense, and as such may be described in a single count in the indictment. No principle, it is believed, nor any benefit likely to result from the practice, requires the offense to be set out in two counts; one charging the intent to commit a murder in the first degree, and the other in the second degree.

This indictment does not contain the specific allegations requisite in an indictment for murder in the first or second degree under the statute. It copies, in that part which sets out the intent, the common law form for describing such intent, as found in the indictment for an assault with intent to murder. Malice aforethought, as here set out, will be found charged also in the common law indictment for murder. The jury, however, under the indictment for murder, may return a verdict for manslaughter, which excludes the idea of malice aforethought, and the introduction in this case of the words malice aforethought, should not have the effect of restricting the jury to the finding merely of an intent to commit murder in the first degree. Under our statute, when there is but a single count in the indictment, which specifically alleges deliberate and premeditated malice, the prisoner may, notwithstanding, be convicted of the lesser crime of murder in the second dégree, or of manslaughter.

The crime of rape, under our statute, like the crime of murder, “is very different, both in its description and punishment, as found in two separate sections of the statute. Swan’s Stat. 230. Under one of these, the 4th section, a person having carnal knowledge of his daughter or sister, against her will, is deemed guilty of a rape, .and on conviction to be imprisoned in the penitentiary for .life.

By the 5th section, if any person shall have carnal knowledge of any other woman, or a female child,' or if any male person of the age of seventeen years and upwards, shall carnally know and abuse a female child under ten years, with her' consent, such person shall be deemed guilty of a rape, and upon conviction, imprisoned not more than twenty nor less than ten years. The law describing the offense of an assault like that in the 17th section, with intent to commit a rape, came under examination before this court, in the case of Bowles,v. The State of Ohio, 7 Ohio Rep., part 2, 248. There the court allude to a distinction to be taken in passing upon the requisite averments, between an indictment for the crime of rape itself, and one drawn upon the section punishing an assault with intent to commit the crime.. And they decide, that an indictment in this last case, need not specifically characterize the person upon whom the assault was made. The person assaulted was described in the count on which the verdict of guilty had been rendered, as Eliza Johnson, a child. Without the expression, “ a .child,” no one could conjecture to which of the sections defining a rape the count was intended to apply; and yet in the opinion it is 'stated, that this part of the indictment might be regarded as surplusage.

In the case now under consideration, all the requisite allegations are found, we think, in the indictment It is unnecessary, when it is framed to reach the offense in this 17th section, that it should contain all the specific averments required in an indictment for murder under other sections of the statute.

In the opinion of a majority of the court, no one of the errors assigned is sufficient to reverse the judgment.

The application for a writ of error is refused.

Caldwell, J., dissented.  