warranted upon the face of the proceedings, and therefore void." In Norton v. Atchison etc. R. R. Co., 97 Cal. 388, 32 Pac. 452, 33 Am. St. Rep. 198, in which the plaintiff in error states the facts are on all-fours with those shown in the case here, we find that the defendant, within ten days after the judgment was entered, served and filed a notice of the motion to set aside; and in that case, Justice McFarland, speaking for the supreme court of California, said: "The general common-law rule is that courts have power over their judgments during the entire term at which they are rendered, and may vacate them on motion. . . . Under our present system, terms of court are abolished, and a motion to set aside a judg ment would have to be made within a reasonable time. We hold, therefore, that, when a non-resident has been personally served within the state, the court has power, within a reasonable time, when it finds that it has been deceived by a false return of such service within the state, to quash the service of summons and to vacate the judgment. This is as broad a statement of the rule as the facts of this case require, and, so holding, we think that the order of the court below should be affirmed." Chief Justice Beatty, in a concurring opinion, says: "Before terms of court were abolished, it is clear that a default judgment entered upon a formal return of personal service of summons could have been set aside upon motion made within the term. The abolition of terms cannot be held to have abolished the remedy by motion, but only the limitation of the time within which the motion must be made. . . . None of the decisions cited are in conflict with this view. They merely hold that a judgment will not be vacated upon motion made after the lapse of the prescribed period unless it is void upon its face, which is quite consistent with the proposition that a motion made within the statutory time may be granted." In this instance the judgment tried, by its own face, is valid. The record, upon examination, sustains it. The return of the sheriff was prima facie evidence of service of process upon the local agent of the defendant. Rev. Stats. 1901, par. 1088. Service upon the local agent was service upon the corporation. Rev. Stats. 1901, par. 1323. The testimony of the witness A. T. Bird, presented in the record, tends to corroborate and support the return of the sheriff. The refusal of the trial court, under these circumstances, to vacate and set aside the judgment on motion after the expiration of the term, was fully in accordance with our practice in this jurisdiction, and the weight of authority on this subject. It is next urged that, even if the trial court had no power to vacate the judgment therein on a motion made after the lapse of the term, the judgment should be vacated by this court, for the reason that it is void for want of jurisdiction over the person of defendant, and should be reversed on that ground; and the entire record is brought here for our review by writ of error taken within the statutory time. The plaintiff in error is correct as to our power to review the judgment upon the record brought here, but, upon the record as presented, we see no ground on which the judgment can be declared void. Neither do we find any reversible error in the record. The record shows that a hearing was had and evidence was presented relative to the merits of the matter in controversy. It does not, however, present that evidence for our inspection or review. It contains the return of service by the sheriff, and the testimony of the witness Bird in corroboration and support of such return. It shows no presentation in evidence before the court of any facts attacking or tending to destroy the jurisdiction of the court, or to affect the validity of the judgment. The allegations of fact that were afterwards set up in the motion to vacate the judgment were not then before the court. But even if we should consider them as now in the record, we should attach no weight to them until they are supported by evidence presented to the court, subject to the scrutiny and examination of the court and the opposite party, under the laws of evidence observed in a trial of issues of fact. There were some ex parte affidavits filed in support of the motion that might have been sufficient to authorize a trial court to vacate and set aside, on motion, a judgment void on its face, where the defect of service and the consequent want of jurisdiction were disclosed either by the face of the judgment or the record on which it was based, or to enable this court to do so on review. But that is not the condition of the case at bar. The return of the sheriff presented in the record shows personal service upon the local agent of the defendants. This return, by paragraph 1088 of the Revised Stat utes of 1901, is made "prima facie evidence of the facts in such return stated." Paragraph 1323 of the Revised Statutes of 1901 provides: "In suits against any incorporated company. . . the summons may be served upon the local agent representing such company or association in the county in which suit is brought." The testimony of the witness A. T. Bird that is presented in the record corroborates the return of the sheriff that A. L. Pelegrin was the local agent of the metal company, and that that company had been doing business in Santa Cruz County, buying metals or offering to buy metals at that time. The allegations of the want of service in the motion were of no effect to overcome the return of the sheriff, or the testimony of the witness Bird, until supported by evidence. There is no evidence tending to overcome these presented in the record. The judgment, therefore, was not only valid upon its face, but was supported by the record; and the verity of that record not having been overcome or even attacked by extrinsic evidence, the judgment of the lower court is affirmed. KENT, C. J., and SLOAN, J., concur. [Criminal No. 187. Filed March 30, 1905.] FRANCISCO MAPULA, and DIONICIO JURADO, Defendants and Appellants, v. TERRITORY OF ARIZONA, Plaintiff and Respondent. 1. CRIMINAL LAW-INDICTMENT-MURDER-AGGRAVATED ASSAULT-INCLUDED OFFENSES-REV. STATS. ARIZ. 1901, PEN. CODE, SEC. 974, CONSTRUED.-Under section 974, supra, providing that a defendant may be found guilty of any offense, "the commission of which is necessarily included in that with which he is charged,' a conviction for an aggravated assault under an indictment charging murder, and setting forth circumstances which in themselves constitute an aggravated assault, will be sustained. 2. SAME-SAME-SAME-INDICTMENT-SUFFICIENCY-REV. STATS. ARIZ. 1901, PEN. CODE, SEC. 215, CONSTRUED.-An indictment charging in effect that defendants assaulted and inflicted "certain mortal injuries" upon the deceased, is sufficient to charge an aggravated assault under section 215, supra, providing that an aggravated assault is committed "when a serious bodily injury is inflicted upon the person assaulted," the words "mortal injuries" being taken as the equivalent of "serious bodily injuries." 3. CRIMINAL LAW-ASSAULT-INDICTMENT SUFFICIENCY-REV. STATS. ARIZ. 1901, PEN. CODE, SEC. 831, CONSTRUED.-Under section 831, supra, providing that "words used in an indictment are construed in their usual acceptance in common language, except such words and phrases as are defined by law, which are construed according to their legal meaning," it is not necessary in charging an assault to allege that the defendant had the "present ability to commit a violent injury," the word "assault" being sufficiently "defined by law" and "by usual acceptance in common language" to authorize its use without defining it. APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Graham. Fletcher M. Doan, Judge. Affirmed. The facts are stated in the opinion. Edwards & McFarland, for Appellants. There can be no conviction for an aggravated assault unless the aggravating matter is set out in the indictment. In this case the party assaulted was a female, but the indictment failing to allege that the assaulting parties were adult males, it is insufficient to charge the offense of aggravated assault. Griffin v. State, 12 Tex. App. 423; Lawson v. State, 13 Tex. App. 83; Flynn v. State, 8 Tex. App. 368. Both an assault and a battery are statutory offenses in the territory of Arizona, and these offenses must be described according to their statutory definitions, for that is necessary to show that the acts constituting the offenses are in violation of the statute. Adell v. State, 34 Ind. 543. In charging an assault under our statute the "present ability to commit a violent injury" must be alleged. Pen. Code, sec. 207; State v. Hubbs, 58 Ind. 415; Howard v. State, 67 Ind. 401. Joseph H. Kibbey, Attorney-General, and Charles L. Rawlins, District Attorney, for Respondent. SLOAN, J.-The appellants in the district court of Graham County were tried upon a charge of murder, and convicted, and sentenced for an aggravated assault. The indictment, omitting the formal parts, reads as follows: "Francisco Mapula and Dionicio Jurado are accused by the grand jury of the county of Graham, territory of Arizona, duly impaneled and sworn, by this indictment, found this 5th day of April, A. D. 1904, of the crime of murder, committed as follows: The said Francisco Mapula and Dionicio Jurado, on or about the 8th day of September, A. D. 1903, and before the finding of this indictment, at the county of Graham, territory of Arizona, willfully, unlawfully, feloniously, with malice aforethought, and deliberate premeditation, in and upon one Annie Beanes, an assault did make, in some way or manner, and by some means, instrument, and weapon to the grand jurors unknown, they, the said Francisco Mapula and Dionicio Jurado, did then and there willfully, unlawfully, feloniously, with malice aforethought, and deliberate premeditation, inflict on and create in the said Annie Beanes certain mortal injuries, a further description whereof is to the grand jurors unknown, of which said mortal injuries, to the grand jurors unknown, the said Annie Beanes afterwards, to wit, on or about the 7th day of October, A. D. 1903, in the county of Graham, territory of Arizona, did die. And so the grand jurors aforesaid, upon their oaths aforesaid, do say that they the said Francisco Mapula and Dionicio Jurado her, the said Annie Beanes, in the manner and form aforesaid, then and there willfully, unlawfully, feloniously, with malice aforethought, and deliberate premeditation, did kill and murder. Contrary to the statute in such case made and provided and against the peace and dignity of the territory of Arizona." It is contended by counsel for appellants that the judgment of conviction cannot be sustained, for two reasons: 1. Because the crime of an aggravated assault is not, nor can it be, by any pleading, included as a lesser offense in a charge of murder; and 2. Because the facts stated in the indictment in this case do not set forth the particular circumstances necessary to constitute the offense of an aggravated assault under the statute. At common law one could not be indicted and tried for murder and be convicted of any offense less than manslaugh |