People v. Judd

Terry, C. J., and Baldwin, J., concurring.

The defendants were indicted for the crime of murder, alleged to have been committed by them on the second of September, 1857, by “shooting and wounding” one Rothenheim through the body with a leaden bullet, discharged from a rifle, “ of which wound he then and there died.” To the indictment the defendants demurred, on several grounds, but relied upon two : first, that it does not state on what part of the body of the deceased the wound was inflicted; and, second, that it does not allege the wound was mortal. The Court sustained the demurrer, and the People appealed.

The first ground relied upon is answered by the decision of this Court in the case of The People v. Steventon, (9 Cal., 273,) *315where it was held that the objection taken goes to the form, rather than to the substance of the indictment.

The second ground relied upon is frivolous. The allegation that the deceased at the time died of the wound inflicted, is a sufficient statement that the wound was mortal.

The judgment sustaining the demurrer is reversed, and the cause remanded, with directions to the Court below to proceed and try the defendants upon the indictment.