Waddle v. Dumas.

WADDLE v. DUMAS.

1. Neither appeal or certiorari will lie from the judgment of a justice of the peace, to the county court, in a suit founded upon a tort, when the damages claimed do not exceed $20. The "superior" court spoken of in the statute, to which the appeal is to be taken, is the circuit court.

Error to the County Court of Fayette.

THE defendant in error brought a suit before a justice of of the peace of Fayette county, against the plaintiff in error, to recover damages for false imprisonment. The damages claimed were less than $20. This suit was brought in the year 1844. The justice dismissed the suit for want of jurisdiction. An execution for costs was issued against the defendant in error; he petitioned the county court of Fayette and obtained a certiorari. The petition set forth the fact of the payment of the cost, and prayed a supersedeas, and also a certiorari, to bring up the judgment. Upon the return of the certiorari, the plaintiff in error moved to dismiss it, which motion was overruled, and the county court took jurisdiction of the suit, and rendered a judgment in favor of the defendant in error, for ten dollars. It is here assigned for error, that the motion to dismiss the certiorari should have been granted.

COGGIN, for plaintiff in error, cited Bobo and Johnson v. Thompson, 3 S. & P. 385; Wheelock v. Wright, 4 Id. 163.

P. MARTIN, contra.

DARGAN, J.-By the act of 1841, jurisdiction was given to justices of the peace, to try all causes for damages, whether the same resulted from contract or tort, (except in cases of slander,) where the damages claimed do not exceed twenty

The State v. Bullock.

dollars; and by the proviso to the act, either party could appeal from the judgment of the justice to the next superior court of the county.

Before this statute, a justice of the peace could not entertain jurisdiction of a suit founded on a tort. By this statute jurisdiction is given, when the damages do not exceed twenty dollars. But we think the right to appeal to the next superior court of the county, means the circuit, and not the county court, and therefore the power to revise the judgments of justices in suits for torts, does not belong to the county courts, but is confined to the circuit courts. It will follow, that if the defendant in error could not have appealed to the county court, he could not bring the case before that court by certiorari. The county court therefore, had no jurisdiction to try this case, brought before it by certiorari, and consequently should have dismissed the writ. The judgment of the county court is therefore reversed, and judgment will be here rendered, dismissing the writ of certiorari.

THE STATE v. BULLOCK.

1. An indictment need not conform to the exact words of a statute, creating the offence. It is sufficient if the words used in the indictment descriptive of the offence, are equivalent to those used in the statute. 2. An indictment charging that the prisoner, "with a certain large knife, which he then and there had and held, at and against the body of the said H. W. R., then and there did cut, thrust, and stab, with the intent him the said H. W. R. then and there, feloniously, wilfully, and of his malice aforethought, to kill and murder," sufficiently states that the intent to commit the act was by the use of the weapon described.

3. Although drunkenness reduces a man to a state of temporary insanity, it is no excuse for crime which is the immediate result of it. So, upon a trial for an assault with intent to murder, it is not error for the court to

The State v. Bullock.

charge the jury, that the drunkenness of the prisoner should have no effect upon their consideration.

Error to the Circuit Court of Shelby County. Before the Hon. G. D. Shortridge.

THE prisoner was indicted in the circuit court of Shelby county, for an assault with intent to kill and murder one Henry W. Robertson. The indictment, after stating the assault made by defendant, in the usual form, proceeds, "that the said James Bullock, with a certain large knife which he the said James then and there had and held, at and against the body of the said Henry W. Robertson, then and there did cut, thrust, and stab, with the intent him, the said Henry W. Robertson, then and there, feloniously, wilfully, and of his malice aforethought, to kill and murder." The defendant was found guilty by the jury, and sentenced by the court to five years' imprisonment in the penitentiary.

It appears, from a bill of exceptions taken upon the trial, that the prisoner, and the person on whom the assault was alledged to have been committed, were both deeply intoxicated at the time of the commission of the offence, with spiritous liquors. The prisoner's counsel asked the court to charge the jury, "that although drunkenness does not incapacitate a man from forming a premeditated design of murder, yet, as drunkenness clouds the understanding and excites passion, it might be evidence of passion only, and of a want of malice and design." This charge, the circuit court refused to give, but charged the jury, that drunkenness could have no effect in their consideration. The prisoner moved to arrest the judgment, alledging defects in the indictment, which motion the court overruled. He then insisted, that the offence charged in the indictment was a common law and not a statutory offence, and that the punishment was fine, and imprisonment in the common jail, and not confinement in the penitentiary, which also being overruled by the court, the prisoner excepted, and now assigns for error-1. The refusal of the court to give the charge asked, and in the

The State v. Bullock.

charge given. 2. The refusal of the court to arrest the judgment; and 3. The sentence to the penitentiary.

PECK and BRYSON, for the prisoner, made the following points: 1. The court should have given the charge asked, that although drunkenness does not incapacitate a man from forming a premeditated design to murder, yet as it clouds the understanding, and excites passion, it may be evidence of passion only, and of want of malice and design. The State v. McFall, Addison's Rep. 257; Kelley & Little v. The State, 3 Smedes & Mar. Miss. R. 518. That drunkenness is distinguished into three kinds-1. Intentional-voluntarily induced in order to the commission of a crime while in that state. 2. Culpable-as drinking without any intention to become drunken, but where the party might easily have foreseen that he would naturally become so. 3. Inculpablewhere such consequence would not easily have been foreseen, or the party took due precaution against any such injurious effects, or where the drunkenness was justly attributable to others, or the result of disease. That, in the first, it is no excuse; in the second, it reduces the design of criminality and mitigates the punishment; in the third, the liability to punishment ceases. Mithemaer on the Effects of Drunkenness on Criminal Responsibility, $ 6, 7, 8, 9. 2 Greenl. Ev. 304.

2. That the indictment was bad, because it did not state the intent to commit the act was by the use of the instrument described. 1 Russell, 557.

3. That the offence charged is not provided for in the penal code, which affixes punishment in the penitentiary as the sentence against any person who shall be guilty of an assault with an attempt to murder, &c. The indictment charges the assault with intent to murder. The two offences are different intent, means design-attempt, is an actual effort to carry some design into execution. Intent, is a mental, attempt, a physical act. 1 Russell, 552, 553, 555.

NOOE, contra, insisted that drunkenness was no excuse for crime, and that were the law otherwise, the most flagrant breaches of the criminal law might go unpunished under the

The State v. Bullock.

cover which it would afford. That the indictment conformed substantially to the requisitions of the statute, and the sentence imposing imprisonment in the penitentiary was consequently correct.

CHILTON, J.—1. Before considering the propriety of the charge asked and refused, and that given, by the court, let us examine as to the sufficiency of the indictment. The statute under which it is framed, declares, "every person who shall be guilty, and be thereof convicted, of an assault with an attempt to murder, &c. shall be punished by imprisonment in the penitentiary, for a term not less than two, nor more than twenty years." Conceding the law to be well settled, that all penal statutes must be strictly construed, yet it does not follow, that an indictment for a statutable offence should follow the exact wording of the statute. It is in general sufficient that the offence be set forth with substantial accuracy and certainty, to a reasonable intendment. United States v. Batchelder, 2 Gallis. 15. Nor will a variance between the language of the statute creating the offence, and the indictment vitiate, if the words used in the indictment are equivalent to those used in the statute. State v. Hickman, 3 Halst. 299; 8 Bacon's Abr. Bonner's ed. 88.

Applying these principles to the case before us, we think this indictment does substantially charge the offence described in the statute. It is true, as contended for by the counsel for the prisoner, that there is a marked difference between the terms "intent" and "attempt to kill and murder," &c. But while this difference exists in the terms taken separately, the distinction is lost, when we consider them in the connection in which they occur in the statute, and in the indictment. An assault implies an attempt to do the violence; and the intent to murder, characterizes the criminality of the act. An assault with an attempt to murder, implies nothing less; so we conclude, the indictment contains a sufficient description of the statutory offence.

2. But it is contended that the indictment does not state that the intent to commit the act, was by the use of the weapon described in it. We regard this objection as untenable. The indictment charges that the prisoner, with a large knife