By the Court,
Deavenport, C. J.:The only, points involved in this case are in.reference to the sufficiency of the indictment. In the district court of the county of San Miguel, the defendant was put upon his trial, a verdict of guilty found, ' and his punishment assessed at a fine of fifty dollars. Thereupon the defendant moved in arrest of judgment, which the court beldw sustained, and the territory, by .its proper officer, prayed for and obtained an appeal to this court. The defendant was indicted under the seventh section, third article, concerning crimes and punishments under the Kearny code, p. 63, which is as follows: “Every person who shall be convicted of shooting or stabbing another on purpose, or of assaulting or beating another with a deadly weapon, with intent to kill, maim, rob, or ravish such person, or to commit any other crime, shall be imprisoned not exceeding seven years nor less than two 3'ears.” The character of the punishment inflicted by the Statute constitutes the offense a felony. This offense being a felony, let us test this indictment by the law governing that class of offenses.
It is laid down by Mr. Justice Thompson in the case of The United States v. Mills, 7 Pet. 142, as a general rule, “that in indictments for misdemeanors created by statute, it is sufficient to charge the offense in the words of the statute.” Here is not that technical exactness required as to form which seems to have been adopted and sanctioned by long practice in cases of felony, and with respect to some crimes where particular words must be used, and no other words, however synonymous they may seem, can be substituted. We hold that under this statute the offense should have been charged, not only with the averment that the assault was committed with a deadly weapon, but also with every necessary ingredient which would have constituted it murder had the assault resulted in death. In every well-regulated government punishments can only be inflicted under the law, through the instrumentality of the judicial departments. The organic law provides that no citizen of the United States shall be deprived of his life, liberty, or property in this territory except by the judgment of his peers and the law of the land. . The accused had a right to be tried by the laws of the land, and according to the well-established forms of law, and we hold that neither courts nor officers of the law are authorized to overstep the one or disregard the other in order to reach offenders. The law and its well-established and long-sanctioned forms, if put into requisition, are fully adequate to reach and punish crime. The defendant, however guilty he may have been, could only have been convicted according to law. It is the province of the courts to pursue and punish offenders by the law and under the law, and if sometimes the guilty escape, it constitutes no reason for a departure from the plain path of duty. It is laid down as a rule in criminal proceedings that nothing shall be done within the discretion of the court to the prejudice of the defendant, and hence, in some instances where his interest may possibly be injuriously affected by an order, his consent is necessary. Bo regardful of his rights are the' court that they will not encourage, or indeed suffer, him to assent to that which is manifestly to his prejudice. In some respects the courts are said to be the counsel of the prisoner: United States v. Shoemaker, 2 McLean, 121. These opinions, entertained and upheld by the highest authority, indicate with unerring certainty the plain path of duty marked out for the courts to tread. There is no license given to suppress crime save by legal authority. Keeping in view these principles, and being fully alive to the great abhorrence in which the benignity of the law holds the punishment of an innocent man, we can not hold ourselves authorized to punish the guilty, except the law and its well-established principles sanction it.
There is one other objection, and that is to the sufficiency of its caption. Every caption of an indictment ought to show that the indictors were of the precinct for which the court was holden: Vide 5 Bac. Abr. 93. The caption of an indictment must show with sufficient certainty the style of the court, the judge presiding, the place at which the indictment was found, and the grand jurors by whom it was found: 5 How. (Miss.) 20. This indictment only describes the grand jurors as the grand jurors of the territory of New Mexico inquiring for the county of San Miguel, etc. It does not show that they were chosen, impaneled, and sworn for the county. They may have been chosen, impaneled, and sworn in any other county, as far as the caption gives information to the defendant. It is true that the record may supply deficiencies in the caption in some cases, but it is conceived that if the caption undertakes to describe the grand jurors, that the law will require the territory to make a full and legal description. In conclusion, we will state, that the indictment should have been framed so far as the statute defines the offense under the law existing at the time the offense was committed. Let the judgment of the court below be affirmed.