The first count of the indictment charges, that the defendant, with a certain pistol, which he the said John S. Marshall then and there had and held, feloniously, wilfully, and of his malice aforethought, did make an assault, with an attempt him the said William L. Fluker, wil-fully, and of his malice aforethought, to kill and murder.
The second count charges, that the defendant, with a cer*414tain pistol, loaded and charged with gunpowder, and one leaden bullet, which he in his right hand then and there had and held, in and upon one William L. Fluker, in the peace of God, and said state being, feloniously, wilfully, and of his malice aforethought, did make an assault, with an attempt him the said William L. Fluker, with the pistol aforesaid, fe-loniously, wilfully, and of his malice aforethought, to kill and murder.
Two objections are raised to each of the counts. The first is, that the special facts constituting the assault, or showing in what manner it was made, should have been alledged, and that the allegations, that the assault was made with a pistol loaded with gunpowder, and one leaden bullet, does not sufficiently describe the manner in which the assault was made. The second objection is, that the allegation of an assault with an attempt to murder, is insufficient, the language of the statute being, an assault with the intent to murder.
We will examine the second objection first. At the last term of this court, in the case of Bullock v. The State, the indictment, alledged the assault with the intent to murder, and it was objected, that the words of the statute were, an assault with an attempt. It was so printed in the pamphlet laws of 1840, and also in Clay’s Dig. 416. Under the impression that this was the language of the statute, we held that the words, with the intent, characterized the criminality of the acts alledged, which constituted the assault, and taken in connection together, were equivalent to an assault with mn attempt. We have examined the enrolled bill, and find that the words of the statute are, “ Every person who shall be guilty, and be thereof convicted, of an assult with intent,” ^&c. and that there has been a misprint; hence the question 1 js, áre the words with an attempt, equivalent to'the words ? with intent ? This precise question arose in the case of The State v. Martin, 3 Dev. 329. The defendant was indicted for an assault with an attempt to commit a rape. The language of the statute in that State is with intent; and it was s held that the indictment was insufficient. It must be admit-I ted by all, that there is a marked distinction between the Iwords attempt, and intent. The former conveys the idea of a physical effort to do, or accomplish an act — the latter, the *415quality of the mind with which an act was done. It is not descriptive of the physical act, but describes the will that induced, or governed the act. It cannot then, be said, that the words, with an attempt, are equivalent to the words, with intent; and the rule of pleading is, that when other words are used, than the words of the statute, they must be of equivalent import. B Halst. Rep. 299; 8 Bac. Ab. 88; The State v. Bullock, 13 Ala. Rep. 413. #At all events, every ^thing necesssary to constitute the oifence must be averred, and when the intention with which an act is done, is an ingredient of the crime, that intention must be alledged, and a word that conveys the idea of a physical effort to do the act, instead of the intent with which the act was done, is insufficient.
But it is- contended, that the act of the legislature, by which Clay’s Digest of the laws was received, taken ih connection with the practice of framing indictments under this act, as it is found printed, and the general impression existing with the bench and the bar, that the word used in the statute was attempt, instead of intent, must be considered as a construction of the word intent, which the court should consider obligatory.
The act receiving Clay’s Digest, did not alter or repeal any* law, and we cannot hold that the misapprehension of the language of a statute, affecting the liberty of the citizen, existing for a few years, can alter the statute, or give a construction to the words used in it, in direct opposition'to their meaning.
As our opinion on this branch of phis case, must reverse the judgment, it is unnecessary to decide the other question raised by the first objection to the sufficiency of the indictment. It is therefore ordered that the judgment of the circuit court be reversed, and the cause remanded, and that the prisoner remain in custody, until he be discharged by due course of law.