Lockwood, Justice, delivered the opinion of the Court: Curtis was indicted for an assault with intent, of his malice aforethought, to kill and murder; but the indictment does not charge the act to have been done feloniously. On the trial the defendant was convicted of an assault and battery; and the Court below gave judgment. The only point necessary to be decided, is, whether the indictment is sufficient. In the case of Henry Curtis v.
The People, this very point was made, and it was held that it was necessary “ That the intent should not only 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 set forth, otherwise the inference would be, that the assault might be excusable or justifiable.” For this defect in the indictment, the judgment below must be reversed. Judgment reversed. Breese 197.