¶1The defendant was indicted and convicted‘under section 1438, Revised Statutes.
¶2The ground of his appeal here is that the indictment is defective in not averring that defendant knew the character in which Nunnelly the constable claimed to act.
¶3We think the objection is well taken. This was a matter of substance. It was necessary to make and prove this averment in order to sustain the conviction under said section 1436. R. S., sec. 1826; State v. Claudius, 1 Mo. App. 551; State v. Greene, 66 Mo. 631; State v. Downer, 8 Vermont, 424; State v. Burt, 25 Vermont, 373; 4 Black. Com. 375; 1 Ch. Crim. Law, 539.
¶4Although the indictment is defective in the particular already indicated, it contained a complete description *403of such facts and circumstances as constituted an assault at common law or under the statute. R. S., sec. 1265.
¶5The State v. Carpenter, 54 Vermont, 551, was a case on all fours with this, in which it was said that although the indictment is bad as charging the commission of a crime under the statute, it being alleged the defendant made an assault upon an officer, it was sufficient for an assault at common law, or under the general statute upon the subject of breach of the peace.
¶6And a like ruling was made by the supreme court of Texas in Johnson v. State, 26 Tex. 117.
¶7the judgment of the circuit court is hereby ordered affirmed.