X "that the breaking, scarring or bruising the skin; "* The prisoner testified, "that the said Francis M. was not shot, that he was not standing in the range of her pistol ; that she did not shoot at Francis M., nor attempt to shoot him; that she and Francis M. were the best of friends." Evidence was also introduced impeaching the character of Dock Meadows for truth and veracity and none to sustain him. Upon this state of facts the court instructed the jury, that if they believed from the evidence, that the prisoner maliciously shot the prosecuting witness, Francis M. Meadows, as charged in the indictment, with intent to maim, disfigure, disable or kill him, or to cause him bodily injury, then they should find the prisoner guilty, &c. The second instruction is similar to the first, except that it directs, that if the act was done unlawfully but not maliciously, &c. These two instructions may be properly considered together. It is obvious, that these instructions were wrong. The statute provides, that if any person maliciously or unlawfully "shoot, stab, cut or wound any person or by any means cause him bodily injury with intent to maim, disfigure, disable or kill." The essence and gist of the statutory offence is the intent with which the act may be done. If any of the acts be done, the party may be liable as for a common law offence; but without the intent, as laid down in the statute, there could be no conviction under the statute. The intent mentioned in the statute must be "to maim, disfigure, disable or kill," not any other intent. Under this statute proof of intent to rob, to commit a rape, or any other offence known to the law except to "maim, disfigure, disable or kill," would not satisfy the terms of the statute. If an act is made criminal by statute, only when done with a particular intent, this intent must be averred and proved according to the terms of the statute. 1 Arch. Cr. Pr. & Pl. (8th ed.) 273; State v. Malloy, 34 N. J. 410; Commonwealth v. Dana, 2 Metc. 329; Miller v. The People, 5 Barb. 203. In alleging a statutory offence it is generally necessary to describe the offence in the very language of the statute. Howell's case, 5 Gratt. 664; Commonwealth v. Woodson, 9 Leigh 669; Derieux v. Commonwealth, 2 Va. Cas. 379; State v. Malloy supra. In Davis's Criminal Law 141 it is said, according to the express language of both the sections of this statute, the prohibited acts must be committed with "intention to maim, disfigure, disable or kill." The principle, that if a person in the attempt) to commit one felony shall commit another, his felonious intention shall be connected with his felonious act, appears therefore inapplicable, where an act within the description of this statute accidentally ensues in the prosecution of a different kind of a felony. It The instructions in adding to the words of the statute, "or to cause him bodily injury" were clearly erroneous, was an instruction to the jury, that upon an indictment for one offence, they might convict of another and a wholly different offence, not prescribed by the statute, under which the indictment was found. A person might do any of the acts with intent to do less bodily harm than to "maim, disfigure, disable or kill," which are made felony; and under these instructions, be convicted of felony for a mere misdemeanor. The third instruction given by the court and the first instruction asked in behalf of the prisoner will be considered together. But first I will dispose of the second instruction asked for by the prisoner's counsel and refused, viz: "The court instructs the jury, that if they believe the prisoner intended and attempted to shoot only Francis (Dock) Meadows, then they cannot convict the prisoner of an attempt to commit the felony charged, and must acquit the prisoner." The question intended to be raised by this instruction, is thus stated in the very able brief of the counsel for the plaintiff in error: "There is no doubt, that shooting F. with intent to shoot D. is an offence. But the question here presented is, whether or not, under an indictment charging one with shooting F. with intent to maim, &c., F., proof that the accused intended to shoot D., but accidentally shot F., will support the allegations of the indictment. The last is purely a question of pleading and evidence. If a person shoot at one person with intent to maim, &c., and accidentally hit and maim another, it is a crime; and conviction would follow upon a proper indictment. But this principle of law does not conflict with the equally well-settled principle that a man cannot be arraigned upon one charge and convicted of another. "The apparent difficulty seems to have grown out of a confusion of the substance and the pleading. The cases referred to in some of the older authorities, as in Russell for instance, are not at my command; but it is believed, that their apparent conflict will be explained by the fact, that one set of cases affirms the doctrine in the abstract, that a man may intend one crime and commit another; while the other set of cases, not denying this principle, hold, that persons cannot be convicted, because the offence proved differs from that charged and constitutes a separate and distinct crime to be pleaded accordingly. The opinions of Parke B. and Alderson B. referred to in 1 Russell 741 with reference to the "intent to poison a certain person" after reviewing the cases preceding it, concur in support of the view here presented. Undoubtedly a person may intend and attempt to commit one offence and actually commit another, for which he is equally amenable to the law; but this doctrine does not conflict with the salutary rule that every crime must be so charged as to enable the defendant, 1st, to meet it intelligently; and 2d, to plead it in bar of a subsequent prosecution in case of a conviction or acquittal. Here the defendant is arraigned upon an indictment for shooting with intent to maim, &c., Francis M. Meadows; and meeting that charge successfully, as the whole record will show, she is convicted of an intent and attempt to maim, &c., Dock Meadows, a different and distinct person." The rule is well settled, that if one person shoot at another with intent to kill him and miss that person and kill a third person, it is murder. The malicious intent towards the second is transferred to the third upon the well-settled principle, that a man shall be presumed to intend that, which he actually does. I can see no distinction between the degrees of the act-between murder and maiming, and when the statute creates a new criminal offence, the common law rules as to crimes generally attach to it, so far as they are applicable to that character of crime. If A shoots at B with intent to maim, disfigure, disable or kill him, but misses B and maims, disfigures, disables or kilis C, his wicked intent towards B is transferred to C, and A is presumed to have originally intended to do that, which he actually did do. Davis in his Criminal Law 142 after using the language before quoted says: "If however a man striking at another with such an evil intent, as would make him guilty of this offence, if the person struck at had been hurt, happen to miss that person and strike and maim a third person, he will be equally guilty, as if he had intended to strike the latter, in like manner as if a person, who commits one species of maiming in the attempt to perpetrate another, is as guilty of that which he commits, as if he had intended it." These remarks are made on the construction of a statute, substantially like the present statute, contained in the Revised Code of Va. ch. 156 § 1, and he refers to 1 Russell. In the case of Rex v. Hunt, East (T. R.) 1825, cited in 1 . Russ. 739, Hurst was indicted under a statute, 43 Geo. III, chapter 58," with intent to murder Cambridge." The evidence was, that in an attempt to kill Headley he cut Cambridge with a knife. It was held, he could be found guilty under this statute. 511 In the case of Rex v. Holt, 7 C. & P. 609, Holt was indicted for shooting at Hill "with intent to murder," but he did not hit him. The proof was, that he mistook him for Lee, whom he intended to kill. It was held, that the indictment could not be sustained. Littledale, J., in summing up said: "There is no doubt, that the prisoner shot at Mr. Hill; and if death had ensued, the offence would have amounted to murder. Then it will be for you to say, whether the prisoner intended to do Mr. Hill some grievous bodily harm. It certainly appears, that he did not do so in point of fact. However, the law infers, that a party intends to do that, which is the immediate and necessary effect of the act, which he commits." It is plain, that the ground, upon which the prisoner was directed to be acquitted, was that Hill was not struck, If he had been, the prisoner would have been held responsible upon the principle, that "the law infers, that a party intends to do that, which is the immediate and necessary effect of the act, which he commits." In 1 Arch. Cr. Pr. & Pl. 271, it is said in discussing statutes similar to ours and to those, under which the cases above referred to were decided: "But if a man fire at A. and shoot B., he may be indicted for shooting and discharging the pistol or gun against B.; for in fact he did so." The author refers to Rex v. Holt, Rex v. Jarvis, 2 Mash & R. 40; and Regina v. Smith, 33 Eng. Law & Eq. 567. In Rex v. Jarvis Jarvis and Longdon were indicted for shooting Lockeyer with intent to murder. The proof was, that they shot at Hale and missed him and hit Lockeyer. They were found guilty. It was held: "An indictment under 9 Geo. IV, ch. 31, § 12, for maliciously shooting at A. B. is supported, if he be struck by the shot, though the gun be aimed at a different person." In the case of Regina v. Smith, decided in 1855, Smith was convicted upon an indictment charging him with wounding Taylor with intent to murder him. The proof was, that the prisoner intended to shoot one Maloney, and supposing Taylor to be Maloney shot at and wounded Taylor; the conviction was held good. It was held: "If intending to murder A. and supposing B. to be A. a person shoots at and wounds B., he may be convicted of wounding B. with intent to murder him." In the case of Rex v. Lewis, 6 C. & P. 161, Lewis was indicted for administering poison to Davis with intent to murder. The proof was, that the poison was intended for Mrs. Davis and was left on the counter with directions for it to be delivered to Mrs. Davis. It was held, that if it was intended for Mrs. Davis and found its way to Mr. Davis and he took it, the crime is as much within the act of Parliament, as if it had been intended for Mr. Davis. If a person sends poison with intent to kill one person, and another takes that poison, it is just the same, as if it had been intended for such person. Subsequently this case was doubted by Parke, B., in Regina v. Ryan, 2 M. & R., 213. In that case Ryan was found guilty under an indictment charging her with causing poison to be taken by George Power with intent to murder the said Power. The evidence showed, that the prisoner's intention |