Opinion
(April Term, 1795.)
Indictments containing three counts, the first of which the court had no cognizance of. To submit on the first count (the others not to be considered) would oust the court of jurisdiction. Submission cannot be made upon one count without all, unless nol. pros. is entered as to the other counts. Upon assaults with intent to kill, the court may punish by fine only.
DEFENDANT was indicted for an assault and battery, stated in three counts: in the first, for a common assault and battery; in the second, for an assault with intent to kill and murder; in the third, for an assault and wounding with intent to kill and murder.
General Davie, for the defendant, upon an agreement between him and the Solicitor General, offered to submit upon the first count, and the other counts should not be considered at all.
If he submits upon that only, the court cannot take any notice of the offense, being ousted of original jurisdiction by the act of 1790, ch. 3, sec. 8, which directs "that all indictments for assaults, batteries, and petit larcenies shall in future originate in the county courts of pleas and quarter sessions only." These words are equivalent to express negative words, which it is said are necessary to oust this Court of jurisdiction, and the defendant cannot by his admission give to the court cognizance of an offense which by law they have no cognizance of, any more than a prisoner indicted for a capital felony could by his admission give authority to a county court to pass sentence upon him. Neither can there be a submission for part of the indictment only; he must submit as to all the counts in the indictment if he submits at all, unless the Solicitor General will enter a nole prosequi as to some. The Court are not obliged to imprison upon a conviction for an assault with intent to kill. They may inflict imprisonment, the pillory, and a fine, but they may inflict some or one of them only. 4 Bl. Com., 217, means only that the Court have a discretionary power of inflicting the punishments there mentioned, not that they are obliged to inflict all of them.
Defendant submitted, and the witnesses for the State were examined, and the Court fined him only.