•Opinion, delivered by
McGirk, Judge.The whole of these objections resolve themselves into the following points: 1st. Is the offence charged in either court, indictable by the law of the land? 2nd. If so, then are the offences sufficiently charged by the indictment? By the act of the general assembly of 1835, revised code, 372, respecting justices of the peace, sec. 1, it is enacted, that thereafter, no assault and battery or affray shall be indictable, but all such offences shall be prosecuted and punished in a summary manner, before justices of the peace, as hereinafter provided. 2nd. The' jurisdiction of justices of the peace shall not extend to trial or punishment in any case of riot, rout, or unlawful assembly, nor to any assault and battery, which by the then existing laws, may be punished by imprisonment, or by corporeal punishment, or by fine not exceeding one hundred dollars, but such offence shall be punished by indictment. By the 34th section of the áct respecting crimes, R. C. 171, it is declared, that every person who shall be convicted of an assault with intent to commit any robbery, burglary, rape, manslaughter, or any other felony, the punishment of which is not hereinbefore prescribed, shall be punished by imprisonment in the penitentiary “O* eedin§ five 7eara>
The^ first count charges, the assault was committed with intent to wound. This is not made an offence by the statute respecting crimes. It does not come within the 31st section: because that section requires all the assaults and batteries therein mentioned, to be done with malice aforethought. This indictment does not so charge the assault. The assault therefore, with intent to wound,, is only common assault and battery before a justice of the peace, though made with a deadly weapon.
As to the second count in the indictment, we are of opinion the offence there charged comes within the 34th *621section. The indictment charges, the assault was mad'» with a loaded pistol, with intent to kill. To assault with intent to kill is, at least, an assault with intent to commit manslaughter. The 34th section declares, that when any one is convicted with an intent to commit manslaughter, the punishment for which is not before prescribed, imprisoned in the penitentiary, &c. We cannot discover any punishment before prescribed for an assault with intent to commit manslaughter. The 31st secti°n does not prescribe the punishmeut for this case, but on the contrary, prescribes the punishment for assaults where the party had malice aforethought, and intended to commit murder with deadly weapons. But where one intends only to kill, and has no malice aforethought, he intends only to commit manslaughter. In this view of the matter, the second count is good under the 34th section. As to the other point regarding the sufficiency of the charge contained in the second count, we see no objection to its sufficiency. If the second count had been predicated on section 31st, then, perhaps, the indictment should have alleged that the assault was made of malice aforethought, because malice is one ingredient of the offence; but by section 34th, no previous malice is required to exist to predicate the offence on, which is there forbidden. It was further objected in arrest of judgment, that these two counts could not stand together. We see no good reason for this objection. — ■ In this case, the offences are of like kind, and because one count contains no offence indictable at all, that cannot be a reason why the judgment on thp other count should be arrested; — see Crown Circuit Com. 111, 112, 113. The judgment on the first count is affirmed, and the judgment on the second count reversed — and the cause remanded to the court below, for further proceedings.
_An assault with mansíanghteMa indictable, and it is sufficiently de-diSment'as an*' assault with intern to kill