The defendant was indicted for the offense of an “ assault with intent to murder,” and on the trial therefor was found guilty. A motion was made in arrest of judgment, and for a new trial, on the several grounds therein set forth. Both motions were overruled by the court, and the defendant excepted.
I. An assault with intent to murder may be committed by using any weapon likely to produce death. The allegation in the indictment is “that the defendant, on the 9th day of February, 1876, then and there, unlawfully, and with force and arms, in the county aforesaid, using, then and there, a pocket knife, said knife being a weapon likely to produce death, upon one Francis S. Ash, in the peace of said state, then and there being, did make an assault with the intent *585him, the said Francis S. Ash, then and there to kill and murder unlawfully, and with malice aforethought, contrary to the laws' of the state, ” etc. The objection is that it is not specially alleged what use the defendant made of the knife. Whether this objection would have been good on special demurrer before pleading on arraignment, it is not necessary to decide. But, in our judgment, the objection comes too late after verdict, and it is not good in arrest of judgment, under the provisions of the 4629th section of the Code, and the construction given to that section by this court.
2. There was no error in overruling the motion in arrest of judgment. The evidence as to the incompetency of the juror, Wells, was not sufficient to set aside a verdict which could not well have been otherwise than it was under the evidence. The fact that the juror said before the term of the court, “ that he wanted the defendant’s case to come before him, that he would remember, or recollect him,” did not affirmatively show that he was not an impartial juror when he had sworn that he was.
3. There was no error in overruling the ground as to, the newly discovered evidence in relation to the knife being found in prosecutor’s pocket. The prosecutor swore that he had no knife in his pocket at the time of the difficulty. After he had been cut by the defendant, and had fainted and been carried to Turner’s house, there was a knife found in his pocket; when or how it got there does not appear; it was not identified as the prosecutor’s knife. Such evidence as that, if it had been admitted on the trial, would not even probably have produced a different result.
4. There was no error in the charge of the court, in view of the evidence, after giving the charge as requested by defendant, by adding thereto — “In all eases of voluntary manslaughter, there must be some actual assault upon the person killing, or attempt by the person killed to commit a serious personal injury on the person killing.”
Inasmuch as the court below was satisfied with the verdict, and after a careful review of the evidence disclosed in the *586record we find nothing to cause us to be dissatisfied with it, let the judgment of the court below be affirmed.