The Board of Commissioners of Grant Co. v. Miles.

and shall receipt to the Auditor for the amounts. Then follows sec. 104, as amended in 1861. Acts spec. ses. 1861, p. 94 as follows:

"The said Treasurers shall be allowed for their services in making such collections, 5 per centum on the amount of all such collections of delinquent taxes, payable in just proportions out of each fund collected, and shall also be allowed constable's fees and mileage, from the place of holding elections in each township, to the residence of each delinquent tax payer, which shall be collected from such tax payer."

Taking these provisions together, we are of opinion that it was not the intention of the legislature, that the Treasurer should receive 5 per cent. on the amount of delinquent taxes he might collect on the duplicate, after receiving it and before the March settlement, but only on the amount he might collect after that settlement, on the list to be furnished him by the Auditor, and before the duplicate for the next year was placed in his hands. The language of section 104 does not admit of any other construction; it provides compensation for such collections; what collections? Such, as we understand it, as are made upon the lists furnished by the Auditor, by virtue of which the Treasurer is required to call upon the delinquent tax payers, and, if necessary, distrain property.

The same section which allows the 5 per centum, allows also constable's fees, &c., showing clearly that it was not intended to apply to taxes, though delinquent, which were collected on the duplicate, and for the collection of which the Treasurer is not required by law to go out of his office. For the collection of taxes upon the duplicate, as well delinquent as current, after he receives the same, and before he makes his March settlement, compensation is provided in the act of June 4th, 1861. Acts spec. ses. 1861, p. 41.

The State v. Murphy.

Per Curiam.-The judgment below is reversed, with costs. Oscar B. Hord, Attorney General, for the appellant.

McDonald & Roache, J. Brownlee, and W. P. Fishback, for the appellee.

THE STATE v. MURPHY.

CRIMINAL LAW AND PRACTICE.-For the requisite averments in an indictment for assault and battery with intent to commit a felony, see the opinion at length.

SAME. In an information for an assault and battery, it should be averred that the offence was committed in an unlawful manner.

APPEAL from the Daviess Circuit Court.

HANNA, J.-In this case an indictment charged that the de fendant on, &c., at., &c., "did then and there in and upon one H. M., then and there being, make an assault, and him, the said H. M., he the said, &c., did then and there strike, beat and wound, in a rude and insolent manner, with the in tent then and there, the said H. M., purposely, feloniously, and with premeditated malice, to kill and murder," &c. On motion the indictment was quashed.

It is urged that the indictment should have named the instrument with which the battery was committed, and have alleged that it was so committed unlawfully.

The statute provides that, "every person who in a rude, insolent or angry manner, shall unlawfully touch another shall be deemed guilty of an assault and battery." 2 G. & H. 459. And again, "every person who shall perpetrate an assault, or an assault and battery, with intent to commit a

The State v. Murphy.

felony, shall," &c. Id. 438. And again, "if any person of sound mind shall purposely, and with premeditated malice, kill," &c. Id. 435.

This is classed with felonies. And again, "the defendant may be found guilty of any offence, the commission of which is necessarily included in that with which he is charged in the indictment." Id. 406.

It has been repeatedly held, under these statutes, that a man may be acquitted of the intent and found guilty of the assault and battery, on a charge of an assault and battery with intent to murder. 9 Ind, 363; id. 380.'

The question in the case at bar is, whether, in view of these statutes and the decisions under them, the assault and battery is sufficiently charged. We are of opinion that it is not in the part charging the assault and battery, when considered alone. We have a law which requires that every criminal offence shall be defined by statute.

Assault and battery is so defined, and consists in the unlawful touching of the person of another in a rude, &c., manner. Touching, beating, &c., in the manner indicated in the statute, are acts charged to have been committed, but whether unlawfully, or in the exercise of a lawful right, we are not informed. So much for that part charging the assault and battery. The intent with which these acts were performed is sufficiently averred to have been to commit a murder in the first degree. The question arises, whether the averment in that part charging the intent "purposely and feloniously, and with premeditated malice, to kill," &c., relates back to the former part of the indictment, or in any manner cures the defect we have already noticed as existing in the attempt to charge the assault and battery.

We are of opinion that, taking the whole indictment together, it is sufficiently shown and charged that the acts performed, to-wit, the assault, &c., were unauthorized and

Symmes v. Major.

unjustifiable, in other words, were unlawful, although that precise word is not used. One man can not strike another with the malicious and premeditated intent to murder himmurder being a technical term-without so doing unlawfully. Therefore, to charge that he did the act and with the intent set forth in the indictment, it appears to us, is tantamount to charging the act in the language of the statute, as unlawful, especially in view of the fact that the exact language of the statute, defining the offence, need not be adopted or incorporated in the indictment.

Per Curiam.-The judgment is reversed, with costs. Cause remanded for further proceedings.

Oscar B. Hord, Attorney General, and R. A. Clement, Jr., Prosecuting Attorney, for the State.

John Baker and James T. Pierce, for the appellee.

SYMMES V. MAJOR.

ATTORNEYS-PRACTICE.-Attorneys can not withdraw their appearance in a cause without the permission of the Court, and, if it is withdrawn, and the record on appeal is silent as to the ground of withdrawal, this Court will presume it was done upon satisfactory evidence presented to the inferior Court.

WAIVER-PRACTICE. In an action in attachment against husband and wife, the latter being insane and over twenty-one years of age, a personal appearance by the husband, and an appearance by the wife with her husband, and also by her general guardian, waives the necessity of publication, and such facts, appearing in the record on appeal, will obviate the necessity for any evidence of publication in the record.

Symmes v. Major.

GUARDIAN-COMMITTEE.-A general guardian of an insane person, under our statutes, is substantially the committee of such person, and is the proper party to appear for her without any special order of the Court. PRACTICE IN SUPREME COURT.-Where an appearance is entered in the inferior Court, and is never withdrawn, and an appeal is taken to this Court, and the judgment below is reversed and the cause remanded, and, after proceedings there, another appeal is taken to this Court, this Court will judicially know what attorneys have appeared in the cause.

APPEAL from the Ohio Circuit Court.

PERKINS, J.-Prior to the August term of the Ohio Circuit Court, 1858, James S. Jelly, Esq., procured an attachment of certain property of Hannah B. Symmes, upon a writ issued from the clerk's office of the above named Circuit Court. At the August term, 1858, of said Court, he obtained judgment. Peyton S. Symmes, the husband of Hannah, was made a codefendant with her in the attachment suit. Samuel Seward, William S. Holman and Daniel S. Major severally filed claims. under the attachment proceedings of Jelly, and obtained judgments at said August term. The claim of Major was for professional services rendered by him for said Hannah touching her separate property in Ohio county, Indiana, which was attached. The record recites that the Court was satisfied that publication had been duly made, but no copy of it appears. Afterwards, at the February term, 1859, this entry appears of record, viz:

Comes Henry E. Symmes, who, it is admitted by the parties, has been legally appointed the guardian of the said Hannah B. Symmes, an insane person, and also the said Peyton S. Symmes, by A. C. and H. A. Downey, their attorneys, and the plaintiffs in said causes come also, and by agreement of said parties, it is ordered and adjudged by the Court that the judgments in said causes rendered in this Court, on the 11th