¶1delivered the opinion of the Court.
¶2The plaintiff in error was indicted by the grand jury of Ralls county, for an assault upon one Samuel Lightner, with intent to kill, and convicted.
¶3The first count in the indictment charged an assault made feloniously, on purpose, and of his malice aforethought, under the 32d section of the act concerning crimes and their punishments.
¶4The second count charged, that said “Wills, on the day and year aforesaid, and in the said county of Ralls,” made a felonious assault, with intent feloniously to kill the said Lightner.
¶5On the trial, the Attorney for the State entered a nolle prosequi on the first count, and the defendant was tried upon the second count, and found guilty. A motion was made in arrest of judgment, on the ground, that there was no sufficient indictment upon which a judgment could be rendered.
¶6This motion was overruled, and the error insisted on in this Court is, the overruling of said motion.
¶7The second count is supposed to be insufficient, because the time of committing the offence is only averred by reference to the first count, upon which a nolle prosequi had been entered.
¶8The force of this objection is not perceived.
¶9The Circuit Attorney declined prosecuting the defendant on the first count; but the count was not therefore stricken out, or rendered null, as, perhaps, it would have been upon a demurrer sustained.
¶10Judgment affirmed.