Page:Dakota Territory Reports.djvu/384

 ment of the offense. It is not the criminality of the intent alone, nor is it the nature or kind of the weapon, or means employed, merely; for each is a component and an essential part of the whole offense as described, and each lends its own peculiar aggravation to the crime.

In an indictment under either branch of this section, it would clearly be requisite to charge all the particular circumstances necessary to constitute the complete offense. The accurate pleader can readily perceive that as to one element the kind or nature of the instrument is essential to be alleged. And as an indictment must be direct and certain as it regards the particular circumstances of the offense charged, when they are necessary to constitute a complete offense, so must a verdict be direct and certain in a case like this, and must embrace all the necessary elements, if the jury intended to convict under this section. Perhaps the jury so intended; but how are we to say this, except by giving a loose rein to conjecture or inference? It is their peculiar province to determine facts, intents, and purposes; and it is their duty to pronounce their conclusions in accordance with their own judgments. As juries do not give reasons for their verdicts, it can never be legally known what were the precise grounds for them; and if they are in any degree favorable to the accused, it is always presumable they were so given because the evidence was not sufficient in degree, or satisfactory in character.

It would be supremely dangerous to extend the express language of a verdict so as, by implication, to supply a supposed omission, which would make that a felony, which is explicitly declared a misdemeanor. In a case like this every principle of propriety and safety tends to holding to the rule of a strict construction.

This verdict does not find the defendant guilty of the assault as charged, or in manner and form as alleged in the indictment. It does not express the kind or nature of any weapon used. Take it as it is and what does it amount to? An assault with intent to do bodily harm, and without justifiable or excusable cause, is not a felony by our statute, nor was it at common law. With all its verbiage it is nothing