A complaint was filed against the appellant in the justice court of Thurston county, the body of which is as follows:
“D. W. Simmons being first duly sworn on oath says that, at Mud Bay, in said Thurston county, state of Washington, on the 10th day of April, A. D. 1908, Jack Heath did commit the crime of assault with a deadly weapon with intent to do as follows: Then and there being, the said Jack Heath did assault D. W. Simmons with a deadly weapon, to wit, a shotgun, thereby showing a wilful and abandoned heart, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Washington.”
The transcript of the record in the justice court recites that, prior to the hearing on the motion of the prosecuting attorney, “that the charge of assault with a deadly weapon be reduced to the charge of assault, it was so ordered.” The *247complaint, however, remained as stated. The case was thereupon tried to a jury, the appellant found guilty, and his fine assessed at one dollar and costs. Upon an appeal to the superior court, the case was' again tried to a jury on the same complaint, the appellant found guilty of assault, and a judgment entered thereon, from which the appeal is prosecuted.
At the trial in the superior court the appellant objected to the introduction of any evidence, on the ground that the complaint does not charge a crime or offense, and at the close of the state’s evidence moved for a nonsuit. The objection to the evidence should have been sustained. The complaint was doubtless drawn with the intention of charging the appellant with an assault ‘with a deadly weapon with an intent to inflict a bodily injury where no considerable provocation appears, under the provisions of the code, Rem. & Bal. Code, § 2749. It is obvious that the complaint was insufficient for that purpose.
The constitution, art. 1, § 22, provides that in criminal prosecutions the accused shall have a right “to demand the nature and cause of the accusation against him.” The appellant was tried in each instance as for an assault. The code (Rem. & Bah), § 2746, thus defines this offense: “An assault is an attempt in a rude, insolent, and angry manner unlawfully to touch, strike, beat, or wound another person, coupled with a present ability to carry such attempt into execution.” All courts agree that an offense is charged by the statement of the material facts which constitute- it, and not by the statement of a mere conclusion of law. The phrase “did assault” is the conclusion of the pleader, and not the averment of a material fact. State v. Smith, 74 Ind. 557.
There is no allegation that the appellant attempted to or did touch, strike, beat, or wound another person, nor that he had the present ability to carry the attempt into execution. We have held that it is not necessary to use the words of the statute if others of like import are used, and that *248an information which properly charges a consummated assault and battery will support a judgment for assault. State v. Bohn, 19 Wash. 36, 52 Pac. 325. The complaint should have alleged that the appellant had the present ability to carry the attempt into execution, either in the language of the statute or in equivalent words. State v. Hubbs, 58 Ind. 415. The statute is simple, and its meaning plain, and convictions cannot be permitted to rest upon complaints drawn in utter disregard of the constitutional rights of the accused. No brief has been filed on behalf of the respondent, and we have not therefore had the benefit of the state’s view of the case.
The complaint failing to state an offense, the superior court was without appellate jurisdiction. The judgment will be reversed, with directions to dismiss the case.
Rudkin, C. J., and Morris, J., concur.
Chadwick, J., concurs in the result.