The information alleges against the defendant, the commission of an assault and battery ; the casting down one Samuel Webb on the ground, dragging him into a brook or pond of water ; and holding his body and face in the water and mud, with intent, and attempting, to suffocate and drown him. The cause was tried before the county court, to which the information was exhibited ; and the defendant having been convicted, was sentenced to pay a fine and the costs of prosecution. On writ of error brought, the superior court affirmed this determination ; and the suit before this court is for the reversal of the preceding judgments.
The information avers the offence to have been against the form of the statute; and this gives rise to the objection, of which I shall first take notice. It is said, there is no statute, by *330which the above crime is prohibited ; that it is an offence at common law only ; and hence, that the information is erroneous. The law on this subject has been misconceived. If an indictment or information conclude “ contra formam statuti," and there is no statute, these words shall be rejected as surplusage. 2 Swift's Syst. 384. Knowles v. State, 3 Day, 103.
The principal objection is, that the offence charged, is a high crime and misdemeanor at common law, and that it is not within the jurisdiction of the county court. In The State v Danforth, 3 Conn Rep. 112. it was determined by this court that a battery with intent to kill, is, by the common law of this state, a high crime and misdemeanor, and can alone he prosecuted before the superior court. It was, in that case, decided, that an offence of the above description, is not within the statute against breaking the peace, aimed, as it is, against an assault and battery only, and which, if aggravated by some notorious and high handed violence, is within the exclusive jurisdiction of the county court; that the statute refers to batteries attended with unusual aggravations, but that the crime there prosecuted, having been committed with an intent to kill, was, in its nature, a different offence, and, as a high crime and misdemeanor, within the exclusive jurisdiction of the superior court. Now, in what respect is an attempt to suffocate and drown, distinguishable from an attempt to kill ? They both of them are efforts to take away life. A battery with intent to kill, is an attempt to extinguish life, in one manner ; and the same act with an intent to suffocate and drown, is an attempt to take life away in another manner ; and this difference in mode, and not in essence, is the only diversity between the cases. There has been much refinement in an endeavour to show, that a person may be drowned, without the extinction of life, because, as it was said, persons have been drowned and then resuscitated. If this be so, then those persons were killed, and afterwards brought back to life ! In conversation not pretending to accuracy, it may he said, that such an one was drowned, and then restored ; and so it may be, and often has been, said, that a person was hung, and afterwards recovered life. But the popular and obvious meaning of both words, if there be nothing to qualify or explain them, is, that one person died by the halter, and the other by suffocation. And it cannot admit of a doubt, that in the information under discussion, the state might prove, and the conviction is demonstration that it did prove, that an attempt was made by Southworth to kill.
*331If it were apparent, that the attempt was to suffocate, accompanied with the intention to leave a spark of life, which might possibly be rekindled, it would make no difference in my opinion. An assault and battery, with so nefarious an intention, would be a high crime and misdemeanor, to be classed with attempts to poison, and to do other similar acts, where life is endangered ; and, in atrocity, it surmounts an attempt to rob.
This subject I will not further pursue ; but place my opinion on this basis, that the charge was, and must have, been proved to be, an attempt to destroy life by drowning. Of such an offence the county court had no jurisdiction.
Peters, Brainard and Bristol, Js. were of the same opinion.Judgment reversed.