" We shall for shore substitute flats. The land described will then extend to the flats, and be bounded by the flats. On this substitution the construction is manifest. The land conveyed extends to the flats, but not over them; and the flats being a bound of the land conveyed, are not a part of it." The deed under consideration makes the shore of the lake a monument, and it should be treated as such. A grantor in a deed may make the intent of the grantor that the submerged | covered with rock, but forms a beach or flats. land, or any part thereof, shall or shall not pass with the upland being one of which the solution is to be found in the terms of the deed of conveyance." Numerous authorities are cited in support of the proposition asserted. Some of these are referred to and quoted in the further course of this opinion. This court has also laid down the proposition that in a suit to enjoin trespass upon riparian rights, the allegations of the bill must be clear and precise as to the title upon which shore of a lake or stream a monument of relief is prayed. These requirements of boundary, just as well as a road, wall, or clearness and precision have especial applica-ditch, or other similar object. Bradford v. tion to statements as to boundaries of the land Crossey, 45 Me. 9; East Hampton Trustees of upon the ownership of which riparian rights Freeholders v. Kirk, 68 N. Y. 459; Boston v. are claimed. Sullivan v. Moreno, 19 Fla. 200. Richardson, 13 Allen, 146, and authorities The act in terms is expressly limited to those cited. There is a manifest difference between persons and corporations "owning lands actu- land bounded by the lake itself, and bounded ally bounded by and extending to low-water by the shore of the lake. Bounded by the nav. mark, on such navigable streams.' In order igable water, the lake or the stream, the law for one to have riparian rights there must be extends the boundary to the edge of the chanan actual water boundary of the land in con- nel. If bounded by the shore or bank, the nection with which such rights are claimed. land does not reach the water, but is limited Sullivan v. Moreno, supra. Examining Mrs. to the upland. Clement v. Burns, 43 N. Axline's deed, does it show a water bound- H. 609; Nickerson v. Crawford, 16 Me. 245, ary? One of the boundaries of her land is the and authorities cited on page 246; Chapman shore of Orange lake. In conveyancing, the v. Edmands, 3 Allen, 512; Niles v. Patch, 13 word "shore, as applied to the sea and to Gray, 254. Where a boundary is limited tidal waters, has a definite and generally un- "to the bank of a stream," it necessarily exderstood signification. It means that portion cludes the stream itself. Hatch v. Dwight, of land at the water's edge which is daily 17 Mass. 289, 9 Am. Dec. 145; Daniels v. covered, and daily left bare by the rising and Cheshire R. Co. 20 N. H. 85. The descripfalling of the tides. Gould, Waters, tion in the deed, by which the line extend$$ 3, 28; Black, Law Dict. title, Shore; ing to the shore is stated to extend "thence Storer v. Freeman, 6 Mass. 455, 4 Am. Dec. northwesterly with said shore of said lake to 155. As applied to inland waters, so exact the north boundary line, etc., does not show a definition cannot be given. The word an actual water boundary. A very similar generally has only application to large case is Montgomery v. Reed, 69 Me. 510. bodies of water, as lakes and large rivers, and quote from the opinion of the court as folmeans the land adjacent thereto. Webster's lows: "The second call therein commences International Dictionary. If a boundary at a certain point south of the inlet and runs upon "the shore" of the lake is an equivalent thence north to the shore of the term to a boundary upon the lake itself, or Damariscotta river. The shore' is the waters of the lake, then Mrs. Axline is the ground between the ordinary high and a riparian proprietor; otherwise she is not. low water mark-the flats—and is a wellWe do not think the expressions are equiva- defined monument. 'To' is a word of exclulent. Her land is bounded by "the shore." sion when used in describing premises-'to' The shore is land. The word "shore" is an an object named excluding the terminus menantithetic term to that of "water. Their tioned. Bradley v. Rice, 13 Me. 198, 29 Am. significations, instead of being synonymous, Dec. 501; Bonney v. Morrill, 52 Me. 252, 256. are the opposites of each other. Therefore 'To the shore,' then, includes no part of the the boundary is land, and not water. Her 'flats.' The third call is, 'thence northerly land being bound by the shore of the lake, and westerly, as the shore lies, round a point the idea is excluded that it is bounded by the of land and round the head of a cove, to the lake itself, or the waters thereof. The deed northeast corner. This obviously of Mrs. Axline does not even convey the does not include any of the 'shore' or 'flats' shore. It conveys "to the shore." A deed in the cove, for the line called extends along conveys all within the boundaries, but does the outside limits or margin of the shore, or not convey the boundary itself. Gould, of high-water mark. Thus a call 'to the Waters, $199. An early American case upon margin of the cove, then westerly along the this subject is Storer v. Freeman, supra, in margin of the cove,' etc., was held to bound which it is said: "The present question is, by a line without the edge of the water, and therefore, a question upon the construction that the flats were not included." Nickerson of the deeds of conveyance. The lands are v. Crawford, 16 Me. 245. See also Dunlap not expressly bounded on the sea or salt v. Stetson, 4 Mason, 349; Litchfield v. Ferguwater; but they extend to the sea-shore, and are bounded by it; which, as the plaintiff has argued, are expressions of the same import. The court then proceeded to define "shore" and "sea-shore," and then continued: "The shore mentioned in the deed is not We son, 141 Mass. 97. In a note to Com. v. Roxbury, 9 Gray, 451 (524), is quite a collection of cases upon this point, of which a few have been cited herein. Our conclusion is, that conceding Orange lake to be a navigable stream, Mrs. Axline is not a riparian proprietor. She does not | This grant was made by the Spanish governown lands actually bounded by and extending to low-water mark. While what we have said disposes of the case, we think it useful to state, in order to prevent future litigation between the same parties, that the court also reaches the conclusion from the record that the submerged lands of Orange lake, involved in this controversy, were a part of the Arredondo grant. ment to F. M. Arredondo and son before the cession of Florida to the United States. The lands in question were private property at the time of such cession, and at the time of the passage of the Riparian Act of 1856, and were not affected in any manner by the provisions of such act. There is no error in the record, and the decree of the Circuit Court is affirmed. v. KENTUCKY COURT OF APPEALS. Mary HERR et al., Appts., CENTRAL KENTUCKY LUNATIC ASYLUM. A nuisance is subject to injunction and abatement in a suit for that purpose although the defendant is a corporation maintaining a lunatic asylum at the expense of the state, especially when the statute creating it has provided that it may sue and be sued. (May 10, 1895.) APPEAL by petitioners from a judgment of the Chancery Court for Jefferson County sustaining a demurrer to a petition filed to enjoin defendant from interfering with or fouling a watercourse which flowed through petitioner's land. Reversed. fendant dumps, and causes to be carried through a sewer from said buildings, into the creek, all slops, offal, and refuse matter of every kind, a large part-though, because of feeble flow of the creek, not all-of which passes through and upon the premises of plaintiffs, whereby water of the creek, formerly used for watering their animals and other farming purposes, has become unfit for any purpose, and the air rendered so noxious and offensive as to make their homes unhealthy and untenantable. Wherefore they ask an injunction against defendant's maintaining the alleged nuisance, and abatement of it, including the removal of the two dams. But to the petition a general demurrer was sustained, upon the principal ground, as stated in opinion of the chancellor, and now urged in argument, that defendant corporation is but an arm of the state, and consequently cannot be sued without express legislative authority. In terms of the statute creating defendant a corporation, it is not only given power to sue, but made, without qualification, liable to be sued. And, The facts are stated in the opinion. Messrs. Alfred Selligman, O'Neal & Pryor, and Phelps & Thum for appellants. Messrs. A. J. Ĉarroll, John B. Bar-if an action for the cause stated in petition of rett, and A. S. Brandies for appellee. Lewis, J., delivered the opinion of the court: Mary Herr and others brought this action against Central Kentucky Lunatic Asylum, created by statute a body politic, and in their petition state that they are, as was their intes tate husband and father, owners in possession of, and reside upon, a tract of land containing about 300 acres, used as a farm and garden, through which flows a small watercourse, called "Goose Creek;" that adjacent to and above their land is a tract of about 400 acres, acquired and held by defendant for use of the commonwealth, upon which bave been erected, at expense of the state, buildings extensive enough to accommodate, and which do accommodate, about 1,000 persons ad judged lunatics, besides about 100 attendants and servants; that defendant has wrongfully built across said creek two dams, making two artificial lakes or ponds, whereby the natural flow of water has been greatly diminished; that de NOTE. The distinction between nuisance and negligence is illustrated by the above decision holding a state charitable institution subject to injunction against a nuisance while Williamson v. Louisville Industrial School of Reform (Ky.) 23 L. R. A. 200, and some of the other cases cited in note thereto deny the liability of similar institutions for negligence. See also 31 L. R. A. 224. plaintiffs cannot be maintained against it, we are at loss to know what character of default or wrong it could be sued for. But it seems to us, independent of statutory liability, defendant is answerable for the wrong and injury complained of, in the same manner and to the same extent as one or more natural persons would be occupying the same attitude, which is that of agent or officer of the state. As a necessary consequence of exemption of the state from suit without its consent, an action nominally against an officer, but really against the state, to enforce performance of its obligation in its political capacity, cannot be maintained. But if officers or agents of the state invade private rights in a mode not authorized by the statute under which they claim to act, or if such statute is invalid, unquestionably, the person injured has at least a preventive remedy, although the state may be affected by the proceeding, yet not a party to it. As early as the case of Osburn v. Bank of United States, 22 U. S. 9 Wheat. 738, 6 L. ed. 204, in which an injunction was sought against officers acting under statute of a state, the rule was thus stated by Chief Justice Marshall: "If the state of Ohio could have been made a party defendant, it can scarcely be denied that this would be a strong case for an injunction. The objection is that, as the real party cannot be brought before the court, a suit cannot be sustained against the agents of and carelessly taking and appropriating it; for, while holding and controlling property of the state, its officers and agents can no more than a private person disregard the maxim, Sic utere tuo ut alienum non lædas." It cannot be that in such case a person injured would be wholly without remedy merely because the wrongdoers are agents or officers holding and controlling property of the state. The case of Williamson v. Louisville Industrial School of Reform (recently decided by this court) 95 Ky. 251, 23 L. R. A. 200, is not like this, because there damages for a personal injury were sued for against, not the employé who committed the assault, but against the corporation, that party, and cases have been cited to show that a court of chancery will not make a decree unless all those who are substantially interested be made parties to the suit. This is certainly true when it is in the power of the plaintiff to make them parties. But if the person who is the real principal, the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law,-be exempt from all judicial process, -it would be subversive of the best established principles to say that the laws could not afford the same remedies against the agent em ployed in doing the wrong which they would afford against him, could his principal be joined in the suit." The doctrine there stated has in numerous cases been since approved and applied by the supreme court, and this court has never held differently; for exemp tion of the state from suit without its consent was intended for its own protection, not at all to enable agents or officers to do, with impunity, injury to private rights. To say a court of chancery could not enjoin them from entering upon and appropriating, without compensation, land of a private person, though done under color of statutory power, and in interest of the state, would be, indeed, a startling proposition. Yet so using property of the state as to create a nuisance, whereby such private person is deprived of use and enjoyment Judgment is reversed, and cause remanded of his land, would be not less a wrong and in- for further proceedings consistent with this jury than forcibly ousting him of possession, | opinion. against the state, controlling the institution,— which, if recovered, would have been payable out of the trust fund. Here the remedy sought is injunction against continuance of a nuisance, and, as a necessary consequence, abatement of it. And as the alleged wrong is such as to cause permanent mischief and continuous grievance, which cannot be, otherwise than by injunction, repaired or prevented, and as it is moreover alleged that plaintiffs have and will continue to suffer injury to both their health and property unless the court grants the relief, a prima facie cause of action is stated in their petition, and the chancellor erred in sustaining the demurrer. NOTE.-Limitation of general allegations in an in- that fact. The court held that the conclusion of dictment by specific allegations. The doctrine established in STATE V. FARRINGTON, is borne out by the majority of the following cases not mentioned or referred to therein, but cases exactly deciding the question are few. It will be observed, however, that in the Ohio and District of Columbia cases upholding this doctrine there were strong dissenting opinions, which were directly followed by the court in the Oregon case of State v. Brown (1879) 7 Or. 186, 196. In United States v. Barber (1891) 20 D. C. 79, it is said indictments have not yet come to be addressed to the intelligence or interpretation of a jury; they are the guides of the court in determining what issues are submitted for trial, and it is for the courts to understand them according to rules of law which have been established concerning their meaning and their sufficiency. In the above case a motion in arrest of judgment on a verdict of guilty on the trial of an indictment for murder was allowed and the case remanded, upon the ground that the indictment itself did not upon its face show or legally charge and state the death of the prisoner's victim, although the conclusion showed the finding by the grand jury of the indictment by the grand jury contained only conclusions of law while the fact as contained in the body of the indictment amounted only to a charge that the prisoner committed an injury adapted and intended to effect the result - death, the acts stated by such fact not constituting murder. United States v. Barber, supra. Bradley, J., dissenting. The indictment charged that the prisoner by his acts as therein set forth "maliciously choked, suffocated, and drowned" his victim while the grand jurors' conclusion found that he by the means stated "feloniously, unlawfully, and of his malice aforethought did kill and murder." Ibid. It is necessary to allege that the act, done with homicidal intent, and in manner calculated to cause death, actually accomplished its purpose, for without such averment the accused would be tried for an actual killing when he had only been charged with an act adapted and intended to cause that result. Ibid. The indictment in the above case did not allege the place of death and show the jurisdiction of the court, although the conclusion showed such place. Ibid. APPEAL by defendant from an order of the District Court for Hennepin County over ruling a demurrer to an indictment charging him with larceny. Reversed. The facts are stated in the opinion. Messrs. Fred. C. Cook and Henry C. Belden, for appellant: The offense should be properly described by stating the substantial circumstances necessary to show the nature of the crime, with sufficient precision and clearness to render the charge intelligible in its legal requisites, so as to inform the accused of the offense he is called upon to answer. 2 Hale, P.C. 183; Rex v. Freeman, 2 Strange, 1226; Phelps v. People, 6 Hun, 401, 72 N. Y. 334; Bill of Rights, art. 1, § 6; Stat. 1878, chap. 108, § 10, subdiv. 6. In order to constitute the offense of larceny, it is necessary to charge that offense in the usual and ordinary language of such indict ment. The word "withhold" is a neutral term. It does not in common parlance or in legal usage import a criminal offense. State v. Foster, 11 Iowa, 291; United States v. Britton, 107 U. S. 655, 27 L. ed. 520; State v. Parker, 43 N. H. 83. The forms of indictment contain in no uncertain language the allegation that the property was appropriated or taken without the consent and against the will of the owner. Whart. Crim. Pl. § 221, and cases cited. It is one of the necessary requisites of the crime of embezzlement. State v. Lyon, 45 N. J. L. 272. In case of an offense at common law, the facts and circumstances constituting it are defined by the rule of the common law upon the subject; in offenses against statutes, by the statute creating it. Archbold, Crim. L. Pom. ed. 265. The indictment must generally state positively and explicitly what the defendant is called upon to answer, and it cannot be aided by intendments, and this rule is especially applicable to the higher grades of crimes. State v. Seay, 3 Stew. (Ala.) 123, 20 Am. Dec. 66; Com. v. Walters, 6 Dana, 291; Bulloch v. State, 10 Ga. 46; Stephen v. State, 11 Ga. 225; State v. Wimberly, 3 McCord, L. 190; Kit v. State, 11 Humph. 167; State v. Hand, 1 Ark. 165; Com. v. Clark, 6 Gratt. 675; Markle v. State, 3 Ind. 535; Lambert v. People, 9 Cow. 578; State v. Philbrick, 31 Me. 401; Sherban v. Com. 8 Watts, 212; Sweeney v. State, 16 Ga 467; Eubanks v. State, 17 Ala. 181; People v. Allen, 5 Denio, 76; Maskill v. State, 8 Blackf. 299; Phelps v. People, 72 N. Y. 334, 6 Hun, 401; Biggs v. People, 8 Barb. 547. The only exceptions to the foregoing rule are where the indictment is for the offense of being a common barrator, or for being a common scold, or for keeping a common gambling house, or bawdy house. 2 Hawk. P. C. chap. 26, SS 57-59; Harwood v. People, 26 N. Y. 190, 16 Abb. Pr. 430. But it has been held that general charges of public indecency are not sufficient, and that the specific acts and circumstances of public indecency must be stated in the indictment. State v. Brunson, 2 Bail. L. 149; State v. Again, in Schaffer v. State (1887) 22 Neb. 557, where | the form of the indictment for murder at common the indictment alleged that the prisoner "did felo-law, did not conform to the material change which niously, purposely, and of his deliberate and pre- the Ohio statute had made in the definition of the meditated malice make an assault on [the deceased] | act declared to be murder in the first degree, and that the indictment was therefore insufficient for want of a positive and direct averment of a purpose or intention to kill in the description of the offense. . and with a certain gun did then and there feloniously, purposely, and of his deliberate and premeditated malice shoot off and discharge at and upon the [deceased] and thereby and of his striking the said [deceased] . . . inflicted on and in the head of him one mor tal wound, of which said mortal wound the said [deceased] then and there instantly died," the finding of the grand jury being that the prisoner "did in manner and form aforesaid feloniously, purposely, and of his deliberate and premeditated mal- | ice kill and murder the said [deceased] contrary," etc., the court held the indictment bad under section 3 of the Nebraska Criminal Code there being an entire want of any allegation of an intent or purpose to kill and the latter clause or conclusion not bringing the case within the rules or curing the defect. See also Smith v. State (1876) 4 Neb. 277, infra. So in Fouts v. State (1857) 8 Ohio St. 98, the indictment charged that the prisoner "unlawfully, feloniously, purposely, and of deliberate and premeditated malice did beat, bruise and strike, thereby then and there giving to him the said [deceased] in and upon the back side of the head of him the said [deceased] one mortal wound of the length of three inches and of the depth of one inch of which said mortal wound he the said [deceased] then and there instantly died," the conclusion of the indictment finding that the prisoner "in manner and form aforesaid unlawfully, feloniously, purposely, and of deliberate and premeditated malice the said [deceased] did kill and murder contrary to the form of the statute," etc., and the court held that the indictment, although following strictly In Ohio an indictment for murder in the first degree must contain a direct and specific averment of the purpose, or intention to kill, or intention to inflict a mortal wound in the description of the crime, and an indictment which avers an assault and battery resulting in death and committed purposely, deliberately, and premeditated with malice, does not ex vi termini import a purpose or intent to kill, and such omission cannot be cured by the legal conclusions of the grand jury as drawn from the antecedent averments descriptive of the crime. Fouts v. State, supra. In the above case, however, there were dissenting opinions which looked upon the indictment as stating particularly and in detail the act of the prisoner which caused the death and as averring that the acts were done purposely, deliberately. with premeditated malice, causing instant death and as a finding of the grand jury that the prisoner purposely, deliberately, and with premeditated malice killed and murdered the deceased which showed no omission of a purpose to kill, but which presented a positive allegation that the prisoner did kill the deceased. Ibid. But in Robbins v. State (1857) 8 Ohio St. 131, and Loeffner v. State (1857) 10 Ohio St. 598, mentioned and referred to in the above case of Fouts v. State, the indictment was not deficient as it contained a direct and positive averment of the purpose or intent to kill. The same principles were applied in the case of Scribner, 2 Gill & J. 246; Randolph v. Com. | v. Simmons, 96 U. S. 362, 24 L. ed. 820; United In case of statutory offenses, the indictment must state all the facts and circumstances which constitute the definition of the offense in the statute. 1 Hale, P. C. 517, 526; People v. Allen, 5 Denio, 76; United States v. Gooding, 25 U. S. 12 Wheat. 460, 6 L. ed. 693; Updegraff v. Com. 6 Serg. & R. 5; Maskill v. State, 8 Black f. 299; State v. Raines, 3 McCord, L. 533; Sweeney v. State, 16 Ga. 467; Cook v. State, 11 Ga. 53, 56 Am. Dec. 410; Eubanks v. State, 17 Ala. 181; Moffatt v. State, 11 Ark. 169; State v. Eldridge, 12 Ark. 608. There must be a demand and refusal between the assignee and agent. Blackman v. State, 98 Ala. 77; State v. Munch, 22 Minn. 75; State v. New, Id. 76; State v. Coon, 14 Minn. 456; State v. Comings, 54 Minn. 359; Rapalje, Crim. Proc. § 87, with copious citations. It does not necessarily follow that the indictment is good simply because it was in the exact language of the statute. Whart. Crim. Pr. & Pl. § 220. Whether the statutory language is to be followed or not, depends upon the manner the offense is stated therein. Argument or reference cannot be resorted to. Rapalje, Crim. Proc. § 90, and cases cited therein; United States v. Britton, 167 U. S. 655, 27 L. ed. 520; United States v. Mills, 32 U. S. 7 Pet. 138, 8 L. ed. 636; United States Kain v. State (1858) 8 Ohio St. 306, where the indictment averred that the prisoner "purposely and of deliberate and premeditated malice did strike, penetrate, and wound [the deceased] .. giving to him the said [deceased] then and there with a leaden bullet aforesaid, so as aforesaid discharged and shot out of a pistol aforesaid by the said [prisoner]... one mortal wound of which said mortal wound the said [deceased]. died," the finding of the grand jury being that the said prisoner "purposely and of deliberate and premeditated malice did kill and murder contrary," etc., the court held the averment insufficient, the purpose as shown therein being the assault and wounding but not the killing the defect not being cured by the former conclusion. There were also dissenting opinions in the above case to the effect that the purpose to kill was a necessary ingredient of murder in the first and second degree, and must be alleged and proved, and that the indictments in that case, and also in the prior case of Fouts v. State, conform in this respect to the practice and precedents, of indictments for murder in that state, and to indictments which upon specific assignments of error as "informal and unsubstantial," had been pronounced sufficient by that court, relying on the case of Moore v. State (1853) 2 Ohio St. 502. The rule declared in the two preceding cases of Fouts v. State, and Kain v. State, was approved of and followed by the court in Hagan v. State (1859) 10 Obic st. 459, the court holding that where the purpose to kill is not averred by way of description of the offense the omission cannot be aided by the ordinary former conclusion of the indictment which avers that "so" the jurors "say that" the accused "in manner and form aforesaid purposely, willfully and of his deliberate and premeditated malice did kill and murder," the allega States v. Carll, 105 U. S. 611, 26 L. ed. 1135; United States v. Patterson, 55 Fed. Rep. 605; United States v. Hess, 124 U. S. 483, 31 L. ed. 516; United States v. Cruikshank, 92 U. S. 542, 23 L. ed. 588; United States v. Nelson, 52 Fed. Rep. 649; State v. Terry, 109 Mo. 601; Com. v. Slack, 19 Pick. 304; Com. v. Bean, 11 Cush. 414; Com. v. Clifford, 8 Cush. 215; Com. v. Filburn, 119 Mass. 297; 10 Am. & Eng. Encyclop. Law, p. 566; Com. v. Bolkom, 3 Pick. 281; State v. Brown, 12 Minn. 490; State v. Murray, 41 Iowa, 580; Luter v. State, 32 Tex. Crim. Rep. 69; United States v. Burns, 54 Fed. Rep. 358; People v. Hamaker, 92 Mich. 11; Koster v. People, 8 Mich. 431; Byrnes v. People, 37 Mich. 515; Hall v. People, 43 Mich. 417; Harris v. People, 44 Mich. 305. Where an information charging that defendant at divers times between certain dates, "did enter upon and exercise and continue the exercise and practice of the business, avocation. or profession of a private detective," without stating any facts to show in what way he acted as such was declared to be fatally defective. State v. Bennett (Mo) March 18, 1889; Whart. Crim. Pl. § 220; State v. Kesslering, 12 Mo. 565; State v. Davis, 70 Mo. 467; State v. Hayward, 83 Mo. 299, and cases cited; State v. Smith, 66 Mo. 92; State v. Crooker, 95 Mo. 389; 1 Bishop, Crim. Proc. § 81, 325, 494; 2 Bishop, Crim. Proc. §§ 98, 100, 200, 201. The specific facts control, and if they are not sufficient to show ownership, the general tion purporting to be nothing more than an argumentative statement of the legal result of the facts previously stated, and such a mere conclusion cannot cure any defects in the premises on which it remains to be predicated; the chief Justice again dissenting. In Fouts v. State (1854) 4 G.Greene, 500, the indictment contained four counts, the first alleging that the prisoner did willfully, feloniously, unlawfully, and with malice aforethought make an assault and willfully, feloniously, unlawfully, and with malice aforethought, did strike, thrust, cut, and stab, and by the striking, thrusting, cutting, and stabbing did then and there give unto the deceased two mortal wounds of which the deceased died, the grand jury stating that the prisoner willfully feloniously, unlawfully, and with malice aforethought killed and murdered the deceased, contrary to the statute, etc., the court held the indictment insufficient, as not complying with the provisions of section 2569 of the Iowa Code, and that therefore the prisoner could not be convicted of murder in the first degree thereunder. The same conclusion would seem to have been reached by the court in the case of State v. McCormick (1869) 27 Iowa, 402, the court holding that under the Iowa statute the killing and not simply the assault, must be willful, deliberate, and premeditated, in order to constitute murder in the first degree, citing and relying upon the Ohio cases of Fouts v. State (1857) 8 Ohio St. 98; Kain v. State (1858) 8 Ohio St. 306; Hagan v. State (1859) 10 Ohio St. 459, and Fouts v. State (1854) 4 G. Greene, 500. The holdings in the Ohio courts in the above cases of Fouts v. State, and Hagan v. State, to the effect that the allegations in the conclusion of the grand jury are nothing more than the argumentative statement of the legal results as the facts previously state, and could not cure any defects in the |