
    The State, Appellant, vs. Jordan, Respondent.
    1. An indictment for an assault with intent to kill must aver that the assault was with a deadly weapon.
    
      Appeal from Dunklin Circuit Court.
    
   Ryland, Judge,

delivered the opinion of the court.

The defendant, Charles Jordan, was indicted at the September term, 1852, of the Circuit Court for the county of Dunklin, for making an assault upon one Hiram Langton, with intent to kill. At the March term, 1853, the defendant appeared and moved the court to quash the indictment. The court sustained his motion. The State, by her circuit attorney, excepted, and brings the case here by appeal.

The only question presented by the record is, the sufficiency of the indictment. In the indictment it is charged, that Charles Jordan, late of the county of Dunklin, on, &c., with force and arms, at, &c., in and upon one Hiram Langton, in the peace of the state, then and there being, feloniously, wilfully, on purpose and of his malice aforethought, did make an assault, and that the said Charles Jordan, with a certain deadly weapon, to-wit, a pistol of the value of two dollars, which said pistol was then and there loaded with gunpowder and one leaden ball, which he, the said Charles Jordan, in his right hand, then and there had and held, on, at and against the said Hiram Langton, with the intent then and there, thereby him, the said Hiram Langton, feloniously, wilfully, on purpose, and of his malice aforethought, then and there to kill and murder, contrary,” &c.

The pleader has omitted to state, that the defendant assaulted Langton with the pistol. He has omitted to state the facts constituting the assault with a deadly weapon. The indictment, therefore, is insufficient, and it was properly quashed. The judgment of the Circuit Court is affirmed,

Judge Scott concurring ; Judge Gamble not sitting.  