¶1I have not been able to reconcile the indictment set out in the record in this case with any of the forms of indictment allowed by the Code, save that for a simple assault, which is an offence punishable under section 8685 of the Revised Code. The words, “ and with maice aforethought,” maybe regarded as surplusage; and the indictment would then read: “ The grand jury of said county charge that, before the *145finding of this indictment, Leonidas Wood and E. T. Wood unlawfully did assault Daniel Grace, with intent to murder him.” This would be sufficient as an indictment for an assault, which is an indictable offence. Rev. Code, §§ 3685, 4108-9, 4112, 4119, 4141-42. No doubt, the county solicitor by a slip of the pen omitted the letter l from the word which he intended to write, leaving it maice instead of malice; but such a mistake cannot be supplied by intendment. The word malice, or some other word or words conveying the same meaning, must be used in an indictment for an assault with intent to murder. Rev. Code, 809, Form No. 14. If one departure from the prescribed forms is permitted, another and another will soon be asking for the same grace, until the whole system will end in an unintelligible jumble of words unknown to the law and the purposes of criminal procedure. It is best to hold to the prescribed forms. Via trita est tutissima.
¶2The plea was “ not guilty to the said indictment; ” that is, not guilty of an assault on Daniel Grace. Leonidas Wood was found “ guilty as charged in said indictment; ” that is, guilty of an assault on Daniel Grace; for which he was sentenced to imprisonment in the penitentiary for two years. This was error. In such a case, the defendant cannot be fined more than five hundred dollars, and imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months; he cannot be imprisoned in the penitentiary, as in a case of felony.
¶3The judgment is reversed, and the cause remanded for further proceedings in conformity with law; and the said Leonidas Wood will, in the mean time, be held to answer the charge in the indictment, until discharged by due cause of law.