Trexler v. State

19 Ala. 21

Opinion

DARGAN, C. J.

-In the case of Beasley vs. The State decided at the present term, we held that in an indictment-for an assault with the intent to murder, the facts constituting the assault must be alleged, and if they are not, the indictment is defective. But if the facts constituting the assault are stated, and then it is averred that the assault Ayas committed with the intent to murder, the indictment would be good under the statute. — Clay’s Dig. 442, § 26. Applying the rule recognized by this decision, we are bound to hold the indictment in this case defective. It merely avers the assault Avith the intent to murder, without setting out the facts which constituted the assault.

The judgment must therefore be reversed, and the cause remanded, and the prisoner Avill be retained in custody, that he may be re-indicted, unless discharged by due cause of law.