Opinion of the Court-Hawley, C. J.

[No. 720.]

ISAAC IRWIN, RESPONDENT, v. C. E. SAMSON ET AL., APPELLANTS.

STATEMENT ON APPEAL-WHEN DISREGARDED. -A transcript containing an abstract of the minutes reciting in detail the orders of the court and proceedings during the trial, presented independently in the apparent order of the trial and proceedings, does not constitute a statement on appeal and must be disregarded. IDEM-VERIFICATION OF TRANSCRIPT AND STATEMENT. - A stipulation that "the foregoing transcript on appeal is correct, and shall be the transcript in this case on appeal," signed by the respective counsel, applies to the verification of the transcript under the provisions of section three hundred and forty of the Practice Act, and not to a statement on appeal as required by section three hundred and thirty-two.

APPEAL FROM Judgment must contain JudgmenT-ROLL.-Where the appeal is taken from the judgment the statement on appeal must be annexed to the judgment-roll, as provided in section three hundred and thirty-six of the Practice Act.

APPEAL DISMISSED FOR WANT OF A STATEMENT. - Where there is no statement on appeal, no proper assignment of errors, and no judgment-roll, the appeal must be dismissed.

APPEAL from the District Court of the Fifth Judicial District, Nye County.

The facts are stated in the opinion.

John Bowman, for Appellants.

George R. Williams and Frank Owen, for Respondent.

A. M. Hillhouse, also for Respondent.

On this appeal no question is presented upon which the court is called upon to act. No statement on appeal and no specifications of grounds upon which the parties taking the appeal would rely were ever filed in the court below.

By the Court, HAWLEY, C. J.:

The transcript in this case contains an abstract of the minutes, reciting in detail the orders of the court and proceedings during the trial; the findings of the court, original and amended judgments, injunction, stay of execution, no

Opinion of the Court--Hawley, C. J.

tice of appeal, undertaking on appeal, and exceptions to the sufficiency of the sureties and their justification, presented independently in the apparent order of the trial and proceedings, instead of a statement on appeal, as is required by section 332 of the civil practice act. It is just such a transcript as it was held in Corbett v. Job "must be disregarded, because it is in no sense a statement, and this court has no right to consider it, even if it wished." (5 Nev. 205.) The notice of appeal improperly contains, as grounds upon which the appeal is taken, certain points which might properly have been stated in a statement on appeal, as an assignment of errors.

There is a stipulation, signed by the respective counsel, "that the foregoing transcript on appeal is correct, and shall be the transcript in this case on appeal." This, of course, applies to the verification of the transcript under the provisions of section 340, and not to section 332, which provides that when the statement is agreed upon by the parties, they shall certify "that it has been agreed upon and is correct." If a statement had been filed with the clerk in compliance with the provisions of section 332, then, as this appeal is taken from the judgment, a copy of the statement should have been annexed to the judgment-roll, as provided in section 336.

It is reasonable to believe that if counsel for appellants had examined the various provisions of title IX of Appeals in Civil Actions, chapter 1, some, at least, of the many omissions apparent in this record would have been supplied. There is no statement on appeal, no proper assignment of errors, no judgment-roll, and as there is no question properly presented for consideration, the appeal must be dismissed.

It is so ordered.

Argument for Appellant.

[No. 721.]

THE STATE OF NEVADA, RESPONDENT, v. PETER RIGG, APPELLANT.

INDICTMENT-ASSAULT WITH INTENT TO KILL.-It cannot be said that an indictment which charges "an assault with a deadly weapon with intent to kill," does not charge the statutory offense of "an assault with intent to kill," merely because it describes the means or instrument of the assault.

IDEM-STATEMENT OF THE CRIME.-It is not necessary to include in an indictment a formal statement of the crime of which the defendant is accused according to the statutory designation; a statement of the acts constituting the offense is sufficient.

IDEM.-It is not necessary in charging an assault to allege a present ability to kill or inflict injury.

CHALLENGE TO JURORS--WHEN DISALLOWED.--Where the defendant interposed a challenge to the panel of trial jurors on material departures from the forms and requirements of the statute in respect to the drawing and return of the jury, and there is nothing in the record to show that any evidence was offered in support of the challenge: Held, that the challenge should be disallowed, as a matter of course.

EVIDENCE TO BE CONSIDERED MUST BE CONTAINED IN A BILL OF EXCEPTIONS.-Evidence offered in a criminal case in support of objections made to the ruling of the court can only be considered when contained in a bill of exceptions. JURY--OBJECTIONS TO--WHEN WAIVED.-Where the defendant voluntarily accepted the jury as it was obtained, waiving all exceptions: Held, that he could not, for the first time, object in this court that the jurors were not selected according to law.

DEADLY WEAPON-QUESTION OF LAW FOR THE COURT.--As a general rule, the question whether a particular weapon is deadly or not is one of law for the court and not of fact for the jury.

APPEAL from the District Court of the Fourth Judicial District, Humboldt County.

The defendant was convicted on the 20th day of April, 1875, of the crime of an assault with intent to kill one George Wallace, and sentenced to imprisonment in the State prison for the term of one year.

P. H. Harris and L. A. Buckner, for Appellant.

I. The district court erred in not allowing the challenge of the defendant to the panel of the trial jury. A challenge

Argument for Appellant.

to the panel can be founded only on a material departure from the forms prescribed by the statute in respect to the drawing and return of the jury, etc. (1 Comp. L., Sec. 1947.) "Form," in the above section, is the equivalent of mode or manner. The manner in which the jury should have been drawn is that prescribed in "An Act concerning juries," approved March 5, 1873 (Stat. 1873, 126). When an act requires a thing to be done in a particular way, that way alone can be pursued. (3 Brevard, 306-396; 15 Mass. 215; 9 Pickering, 496; 13 Pickering, 234: 3 Stewart & Porter, 13.)

It is conceded that if the statement had shown the drawing had not been in open court, the error would have been well assigned. The words of the statute are plain and unambiguous that a challenge to the panel of trial jurors can be founded on a material departure from the forms prescribed by statute in respect to the drawing and return of the jury, etc. (1 Comp. L., Sec. 1947.) There is no necessity of resorting to technical rules of construction; the legislative will must be obeyed. (3 Scammon, 161; 2 Peters, 662; 3 A. K. Marshall, 489; 1 Pickering, 45, 250; 9 Porter, 266.)

II. A trial jury for the offense charged, "assault with intent to kill," could not have been selected out of the number mentioned in the alleged certificate of the judge and clerk. (Sec. 7, Laws of 1875, amending Sec. 354, Stats. 1875, 118.)

III. The court erred in overruling the defendant's motion in arrest of judgment. Section 47, as amended March 4, 1873 (Stat. 1873, 118), provides for a class of crimes termed generally, "assaults with intent"-there being various kinds-"to kill; to commit rape; with a deadly weapon, instrument or other thing, to inflict a bodily injury where," etc.

The indictment must be direct and certain. There is no such offense as "an assault with a deadly weapon with intent to kill;" and the indictment comes as near charging the last offense above named as it does the first. If it charges the last, then it is a misdemeanor.

Argument for Respondent.

IV. It is not true as a matter of fact that because a knife has a blade three or four inches long it is a deadly weapon. A jack-knife, the one offered in evidence, is not a weapon. It was not made for offense or defense. It may be used in a deadly manner; so may a common brass pin. Nor is it true that such an instrument, in the hands of an ordinarily strong and active man, is a deadly weapon when used to cut or stab another with. The accident of the person who uses it, and the manner in which it is used, do not change the character of the instrument. The word has a definite meaning, and qualified by the word " deadly," has a technical meaning. Bowie-knife and sword are deadly instruments, because they are designed for offense and defense.

J. R. Kittrell, Attorney-General, for Respondent.

I. In an indictment for assault with intent to kill, it is not necessary to set out a present ability to kill or to inflict injury; for where it is definitely charged that an assault has been made, it follows, as a matter of course, that the "present ability" to make it belonged to the assaulting party.

The charge of "an assault with intent to kill" is clearly made in the indictment, and in no manner can it be reasonably argued that, because the instrument with which such assault was made is named in the indictment, it is therefore vitiated or in anywise rendered defective or insufficient. The words "a deadly weapon," and "a knife," are simply surplusage, and therefore do not, nor cannot, impair what is good. (State v. Lawry, 4 Nev. 166.)

If the indictment is certain as to the person and the offense charged, and states all the acts necessary to constitute a complete offense, it contains all that is required by the criminal practice act. (People v. Phipps, 39 Cal. 326; People v. Murphy, Id. 52.)

II. The answer to the objections of defendant as to the mode of impaneling the jury, is found in the fact that it does not appear in the record that defendant excepted to, or in any manner objected to the exercise of the peremptory