
    The State v. Polly Williams.
    An indictment for murder, laying time and place, charged that the accused “ did with her express malice aforethought, unlawfully kill and murder " one J. W., he, the said J. W., then and there being a reasonable creature “in being, within this State, contrary .to statute, ” etc. Held, that the indictment is fatally defective, in that it fails to state the manner and means by which the deceased came to his death. In indictments for murder, the instrument and means by which the murder was committed should be clearly set out in the indictment.
    Appeal from Robertson. Tried below before the Hon. J. B. Rector.
    There is no occasion for a statement of the facts.
    
      Wm. Alexander, Attorney-General, for the State.
    No brief for the appellee has reached the hands of the reporter.
   Ogden, J.

In this case the court did not err in sustaining the exceptions to the indictment, for the reason that the indictment wholly fails to state the manner and means by which the deceased came to his death.

In the case of The State v. Johnston, 11 Texas, 22, this court says: “ A departure from precedent is not advisable. These have been framed and settled on the “ most mature consideration, and a variance from them will “ be fatal, unless the requisite certainty of pleading has, in .the form assumed, been attained.” And in The State v. Croft, 15 Texas, 576, the court clearly intimate that in an indictment for murder the instrument and means of death should be clearly stated. The charge is a grave one, and should be set out with all the formality and particularity of the law, that the defendant may be informed, not only of the offense of which he is accused, but also the particular facts constituting the offense.

But Article 2272, Paschal’s Digest, clearly indicates that the instrument or means by which a homicide is committed should be distinctly set out in the indictment, at least so far as known, as they are to be taken into consideration in judging of the intent of the offender, and the degree of crime. For the reasons given the judgment of the District Court is affirmed.

Affirmed.  