¶1By the Court,
¶2At the February Term of said Court in 1863, .an indictment was found against Millar, the appellant for shooting with intent to kill one George Stigers, and at the next June Term of said Court, a trial was had and a verdict of guilty rendered by the jury, fixing the punishment at two years hard labor.
¶3Motions to quash, for a new trial and in arrest of judgment were made by the defendant’s counsel and overruled by the Court, and the defendant sentenced to two years hard labor im the penitentiary.
¶4It is claimed for the appellant, that the record should show affirmatively that the indictment was returned into Court by the Grand' Jury.
¶5The record does in fact show that the Grand Jury, in a body came into Court, and through their, foreman, presented to the Court, six bills of indictment, each endorsed a true bill and signed by the foreman.
¶6Afterwards the'record shows the following entry: “ Record of indictment, February Term, 1863, Be it remembered, that at a session of the Criminal. Court of Leavenworth county, at the February Term of said Court, begun, and held in the City of Leavenworth, in the county aforesaid, commencing on Monday, the second day of February, A. D. 1863, the Grand Jury of the State of Kansas, in, and for the County of Leavenworth, duly empannelled, sworn and charged to enquire within, and for said county, at said Term on the fourth day of Fedruary, A. D. 1863, through their foreman, H. B. Keller, Esq., presented to the Court sundry bills of indictment, which $,re in words and figures following, viz: among other- in*181dictments, so recorded is the following, to-wit: Then follows the indictment against . Millar.
¶7It will be readily seen that the objection as stated] is invalid since the record does show affirmatively the return of the indictment into Court by the Grand Jury. But the real scope of the objection seems to be, that the appellant was tried upon a copy of the indictment, as found on record, and not upon the original bill signed by the foreman.
¶8Conceding this to have been the fact, it would have been proper to show by affidavit, that the original bill had been lost or destoryed; but the omission to file such an affidavit, or to place it upon the record if filed, would, we apprehend be merely a “technical error or defect” within the meaning of Sec. 276 of the Criminal Code, and must therefore be disregarded.
¶9It is further objected, that the verdict of the jury should have stated the degree of the offence of which they found the defendant guilty.
¶10To this objection, it is sufficient to remark, that the indictment is founded upon Sec. 32, of the “Act relating to Crimes and Punishments,” and the Act makes no distinction as to the degree of the offense.
¶11A motion to quash the indictment was. made, and the reason assigned, was, that the indictment does not state facts sufficient to constitute a public offence; but upon examination, we have been unable to perceive the force or justice of the objection. The indictment seems to us to be “ direct and certain as to the party and the offence charged ” as required by the Statute. {Grim. Pro. See. 90.)
¶12The defendant’s counsel requested the Court to charge the jury as follows, viz: That if the jury have a reasonable doubt, whether the offence was committed on the Delaware reserve, or on the North side of the line of said reserve, in this, the County of Leavenworth, they should acquit the defendant, “ which instruction the Coiut refused to give, and the defendant excepts.”
¶13*182The limits of the County of Leavenworth, as of other counties of this State, are 4efine<I by the Statute of the State, and the lands known as the Delaware reserve, are so far as tlie administration of justice to persons not belonging to the Delaware nation or tribe is concerned, form an integral part of the counties within whose boundaries they are included. This point was discussed and settled in the United States Circuit Court, for the District of Kansas, at the last Term of said Court, in the case of the United States v. Ward.
¶14The Court charged the jury, “ that the allegation on purpose and of malice aforethought” in the indictment, must be established beyond a reasonable fioubt, the same as any other allegation or material fact. This purpose need not be conceived any length of time before the act, nor need the malice aforethought exist days or hours before; it is sufficient, if just, before the act was committed, the defendant conceived the purpose of killing Stigers. He did it then “ on purpose and with malice aforethought.” To which charge the defendant excepted.
¶15This language we conceive might have been justly and properly-used to the jury in connection with other instructions concerning the nature of the offence, and the proper and legal proofs of its commission, and as the bill of exceptions does not purport to give the whole of the charge, and does in fact give no more than the words excepted to, ■we are utterly unable to decide whether it was in fact given with the porper additions and qualifications or not. The presumption must be in the absence of proof to the contrary, that it was so given; it was at the option of the defendant’s counsel to have embodied the whole of the instructions of the Court to the jury in the bill of exceptions, together with the testimony from which the Court might have seen the illegality or insufficiency of sueh instructions, and the omission to do so, strengthens the presumption which the law applies in their absence.
¶16*183The only remaining exception, is, that tbe prisoner was sentenced to two years hard labor, “m the Penitentiary of tbe State of Kansas.”
¶17Tbe prisoner’s counsel allege tbat there is no “ Penitentiary in tbe State of Kansas,” and no Statute authorizing punishment by confinement at bard labor in such Penitentiary. Wo remark upon this point, first, tbat tbe terra penitedtiary is an English word in common use, to signify a prison or place of punishment, and tbat it is so used in our Statutes. Thus in tbe act relating to Crimes and Punishments “Sec. 169. If any person confined in the Peniientiarg for any term less than life shall escape from such prison or from tbe custody of tbe officers, be shall be liable to tbe punishment imposed for breaking tbe prisons”— and second: Tbe Constitution and laws of tbe State make express provision, for a State Penitentiary. See Constitution of Kansas, Art. VII, Seo. 2, Laws of Kansas, First Session 1861, pp. 28-9.
¶18'We think tbe sentence was not invalidated by tbe use'of the' words complained of; but tbat those words are to be understood to mean tbe place of punishment in which convicts sentenced to confinement and bard labor, are confined by authority of law.
¶19The judgment is affirmed at tbe cost of tbe appellee.