The exception to this indictment is, that the supposed offense is a statutory offense, and not an offense at common law, and is not described in the substantial language of the statute.
It is said, in our law authorities, that it is in general necessary, not only to set forth on the record all the circumstances which make up the statutable definition of the offense, but also to pursue the precise and technical language in which they are expressed. 1 Chitty Cr. Law, 283 ; and other authbrities there cited. See also Starkie Cr. Pleading, 248.
The statute speaks of an assault and battery, by means of a deadly weapon. The indictment does not state that there was an assault and battery, neither does it state that the supposed stabbing was with a deadly weapon. The substance of the charge in the indictment is, that the accused stabbed and wounded Shelby with a drawn knife. The indictment should have alleged that the accused did assault and beat, and it should also have alleged that the assault was made with a deadly weapon.
The act aforesaid further provides that “ if by such other means or force as was likely to produce death, with intent to kill, etc., shall be punished,” etc.
If this clause is relied on, the same particularity and certainty, as to the assault and battery, and the means used, should be observed in the indictment.
Judgment reversed, and prisoner remanded for further proceedings in the court below.