#### Henry Curtis, Appellant, v. The People, Appellee.

APPEAL PROM CLINTON.

All objection to the form, of an indictment, must be made before trial, and an omission to state in an indictment that it was found upon the “ oaths” of the grand jury, is matter of form only, and can not be assigned for error. (1)

In an indictment for an assault and battery with intent to kill, it is indispensable that the intent should be alleged to be unlawful and felonious. (2)

Where there are two or more counts in an indictment, one of which is good and the rest bad, and a general verdict of guilty, the judgment shall stand. (3)

At the April term, 1828, of the Clinton circuit c our t,the grand jury of Clinton county preferred the following bill of indictment against the appellant, viz.:

Of the April term of the Clinton circuit court in the year of our Lord one thousand eight hundred and twenty-eight.

State of Illinois, Clinton county, ss.

The grand jurors chosen, selected and sworn, within and for the .county of Clinton, in the name and by the authority of the people of the state of Illinois upon their present, that at the county aforesaid, on the tenth day óf December, in the year of our Lord one thousand eight hundred and twenty-seven, with force and arms, to wit: with a rifle gun then and *257there held in his hands, and loaded with powder and one leaden ball, Henry Curtis, on the day and year aforesaid, at the county aforesaid, with intent to till one James Tilton, and him did with the said loaded gun assault and discharge against and upon, giving then and there to the said Tilton one dangerous wound in his said leg, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the same people of the state of Illinois.

And the jurors aforesaid do further present, that on the day and year aforesaid, at the county aforesaid, Henry Curtis did then and there with force and arms make an assault upon the body of James Tilton, the said Tilton then and there being in the peace of God and the said people, and him then and there, the said Curtis, did beat, bruise and ill treat, contrary to 'the statute in such case provided, and against the peace and dignity of the same people of the state of Illinois.

Upon this indictment, at the September term, Curtis was tried and found guilty. A motion was then made in arrest of judgment, which the court overruled, and sentenced him to pay a fine of 50 dollars and to imprisonment for the term of twenty days. From this judgment Curtis appealed, and assigned as causes for the reversal of the judgment: 1. That it does not appear by the indictment that it was presented upon the oaths of the grand jury.

2. The indictment does not pursue the language of the act of assembly, but is totally variant therefrom.

3. The indictment does not charge the defendant with shooting with intent to commit murder, the offense designated in the act, but with intent to kill.

4. The indictment contains two counts and for separate offenses, and the first one being bad, a general verdict of guilty can not be supported.

(1)

Mere formal objections must be made before pleading. Guykowski v. The People, 1 Scam., 476. Stone v. The People, 2 Scam., 333. Townsend v. The People, 3 Scam., 329. Conolly v. The People, id., 477.

(2)

An indictment for an assault with intent to murder, should not only charge the intent to have been malicious and unlawful, but the felonious intent, and the extent of the crime intended to be perpetrated should be distinctly set forth. Curtis v. The People, 1 Scam., 285.

In an indictment for an assault with intent to murder, it did not charge the offense to have been unlawfully done. The court held the indictment good. Perry et al. v. The People, 14 Ill., 496.

(3)

The same is held in Townsend v. The People, 3 Scam., 329. Holliday v. The People, 4 Gilm., 113.

Opinion of the Court by

Justice Smith.

The grounds of error assigned and relied on, for a reversal of the judgment in this case, which it becomes important to notice, are,

1. That it does not appear that the presentment of the grand jury in the bill of indictment, was on the oaths of the grand jurors.

. 2. That in the indictment, the offense charged, is not in the language of the statute, although founded on the statute, but is wholly variant therefrom.

3. That in the first count, the offender is not charged with shooting with intent to commit murder, but with intent to kill.

4. That there are two counts in the indictment for sepa*258rate offenses, and the first being bad, a general finding of guilty is bad, and that, therefore, judgment ought not to have been rendered on the verdict.

These objections will be considered in the order they are stated. The omission of the word “ oaths” in the indictment, although evidently a slip of the pen, would, we have no doubt, been fatal, according to the decisions at common law.

But the forms of proceedings in criminal cases having been prescribed by our criminal code, and the time prescribed when objections to want of form are to be made, it becomes necessary to inquire, whether the prisoner has not waived this objection by his plea of not guilty, and whether it is not, therefore, too late now, to urge this objection as a sufficient cause for the reversal of the judgment. In the act constituting the code of criminal jurisprudence of this state, under the 15th division, relative to the construction of the act itself, and the duty of courts, it is provided by the 150th and 151st sections,* that the form of the commencement of an indictment shall be in substance the same as that used in the present case, including the word “ oaths,” which is omitted, and that “ every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this code, or so plainly, that the nature of the offense charged may be easily understood by the jury; that all exceptions which go merely to the forpi of an indictment, shall be made before trial, and that no motion in arrest of judgment, or writ of error, shall be sustained for any matter not affecting the real merits of the offense charged in such indictment.” The manner, then, in which the legislature intended the word “ oaths” to be used, seems to be, necessarily, as a term of form, and not substance, and must be so considered ; and it is equally clear, that under this view the prisoner is prohibited, by the latter clause above recited, from now urging it as ground of error. It can not, in the language of that clause, in any way affect the real merits of the offense charged in the indictment. As it regards the second objection, it is to be remarked, that there is, in no part of the criminal code, a definition of an assault with an intent to kill or murder, but barely a specification of the punishment for the offense of an assault with an intent to murder. The statute then can not be said to have required any language whatever to be used in describing the offense, but has left it as it was at common law.

The conclusion in the first count is a common law, as well as a statute conclusion, and if the offense be well recited as at *259common law, it will be sufficient to sustain the first count. In an examination of this count, however, there exists a striking and manifest departure from the common law precedents, in not averring that the intent was unlawful and felonious.

The most approved precedents aver, not only that the assault was committed willfully and maliciously, but with the intent feloniously to kill and murder.

Hence, it seems to be not only necessary and indispensable that the intent should be charged to be in itself malicious and unlawful, but that the felonious design and extent of the crime intended to be perpetrated, should be distinctly and clearly set forth, otherwise the inference would be that the assault might be excusable or justifiable in self defense. Nothing could be more certain and comprehensive than an allegation that the assault was made with an intent to murder. This would, from its technical sense, entirely cover the offense intended to.be charged. As the offense charged in the indictment is simply an assault with an intent to kill, and as there is no allegation that it was done with a felonious, unlawful or malicious design, it is certainly fatally defective, whether the omission of the term “ murder,” be important or not. As the objections contained in the third assignment are substantially the same as those in the second, and are embraced in the reasoning in relation to those, it is unnecessary to examine them.

The remaining one to be considered is, whether a general verdict of guilty, rendered on an indictment where one of the counts is materially defective, be good.

It was urged on the argument, that the two counts were for different offenses, one being for a simple assault, and the other for an assault with an intent to kill, and that, therefore, a general verdict could not stand, and more particularly so, as the court could not know to which the jury applied the evidence.

The objection is not tenable. It is unimportant as to which the jury applied the evidence, because a general finding of guilty as to the whole, necessarily includes the guilt as to a part. In finding the prisoner guilty of the greater offense, the one of inferior grade is surely included. If the assault was committed with the intent alleged, though that intent may not have been sufficiently set forth to sustain the first count of the indictment, he is still guilty of- an assault from the verdict, because the jury, having found the truth of the whole charge, the less is included in the greater. It would, however, be sufficient in meeting this objection to say, that *260the universal practice is, when the crime is of a complicated nature, or it is uncertain whether the evidence will support the higher or more criminal part of the charge, or as it maybe precisely laid, to insert two or more counts in the indictment. Thus, in an indictment for burglary, it is usual to insert one count for a burglarious entry with an intent to steal the goods of A, and stealing them, and another count to steal the goods of another person, or with an intent to kill and murder A, and no doubt has ever been entertained that it is both advantageous and legal; nor is it any objection upon demurrer, or in arrest of judgment, that separate offenses of the same nature are joined against the same defendant. It is also well settled, that the defectiveness of one or more of the counts, will not affect the validity of the remainder, because judgment may be rendered on those which are valid, and the court can regulate the severity of the sentence according to their discretion, on the counts of the indictment which are supported. 1 Chitty’s Criminal Law, 204 and 205. It has been repeatedly determined in the supreme court of New York, that if one count in an indictment be good, although all the others are defective, it will be sufficient to support a general verdict of guilty. The People v. Olcott, 2 Johnson’s Cases, 311. The People v. Curling, 1 Johnson’s Reports, 320. In the present case, the finding of the jury, of the guilt of the prisoner in making the assault with intent to kill, establishes an assault, whether it be accompanied with such intent or not; and although it is true, that the finding as to the first count is inoperative, yet it can not affect the finding as to the second. We are therefore of opinion that the general verdict of guilty is supported, although the first count is defective; but as the imprisonment was doubtless made a part of the sentence of the court in reference to that count, and the evidence adduced under it, justice would seem to require that so much- of the judgment of the circuit court as subjects the prisoner to imprisonment be reversed, and the residue, as to the imposition of the fine and costs, be affirmed, (a)

McRoberts, for appellant.

Cowles, state’s attorney, for appellee.

Judgment affirmed.

*

Rev. Laws of 1827, p. 157.

(a)

Vide Archbold’s Crirn. Pl., 245-7.