¶1The opinion of the court was delivered by
¶2The defendant was convicted upon the second count of the indictment, which charges that he, “ the said Andrew Connors, on the fifth day of July, in the year of our Lord one thousand eight hundred and eighty-one, at the city of Newark, in the county of Essex, in and upon one Louis Noll a felonious assault did make, with intent him, the *212said Louis Noll, then and there feloniously, wilfully and of his malice aforethought to kill, and murder by shooting at him, the said Louis, with a pistol, to the great damage of the said Louis, contrary to the form of the statute in such case made and provided, and against the peace of this state, the government and dignity of the same.”
¶3The alleged error relied upon for reversal is, that the indictment does not set out, with the requisite particularity, the aggravating circumstances which constitute the crime charged, according to section 78 of the Crimes act. Rev., p. 241.
¶4That section provides that every person who shall be convicted of an assault, with an intent to commit any murder, manslaughter, robbery, sodomy or rape, or of an atrocious assault and battery, by maiming or wounding another, shall be deemed guilty of a misdemeanor, and shall be punished by imprisonment at hard labor, not exceeding ten years, or by a fine not exceeding $1000, or both.
¶5The insistment is that section 45 of the Criminal Procedure act {Rev., p. 275,) does not apply to an indictment charging an intent to kill, and that therefore the manner in which the intent was manifested must be set forth with as much particularity as in an indictment for murder at coinmon law.
¶6The crime at which the statute is aimed is the assault with the intent to commit murder, and that is specifically charged, so that the defendant could have been under no misapprehension as to the character of the offence imputed to him. ■
¶7The defect relied upon, if it exists, is a formal one, which could not have prejudiced the defendant in maintaining his defence on the merits.
¶8It was the object of the eighty-ninth section of the Criminal Procedure act to deprive offenders of the right to take advantage of such errors. ,
¶9In State v. Donnelly, 2 Dutcher 463, a technical error in the verdict was, by force of this statute, held to be of no importance in the case.
¶10In Hunter v. State, 11 Vroom 495, the Court of Errors refused to reverse the judgment against the prisoner for the *213admission of illegal testimony, where it plainly appeared that such testimony could not have injuriously affected him on the merits of the case.
¶11In State v. Robinson, 6 Vroom 71, the same statute was successfully invoked to prevent the defendant from taking advantage of a formal defect in the description of the crime charged to him.
¶12To promote the ends of justice this act should receive the most liberal interpretation and be accorded the fullest .effect.
¶13It is not necessary to decide whether the crime in this case is charged with technical formality. Conceding the imperfection, the defendant was in no wise prejudiced by it in maintaining his defence upon the merits, and therefore the judgment below should be affirmed.