State v. McAllister , 26 Me. 374 ( 1846 )

The opinion of the Court was prepared by

Shepley J.

— The case is. presented on a motion in arrest of judgment. The indictment contained three counts. A nolle prosequi of the second count has been entered. The accused was put upon trial j and was acquitted of the charge alleged in the first count, and convicted of that alleged in the third count. There is an allegation in the first count, that it was presented upon the oath of the jurors. There is no such allegation in the third count.

It is essential, that it should appear in an indictment, that it was found, upon the oath of the jurors. Francis Dily’s case, Cro. Jac. 635. Chitty’s Cr. Law, 202.

It was once considered, that the names of the jurors finding it should also be inserted ; but that is not necessary. 1 Saund. 248, notes.

Several counts are allowed because a person may be indicted for different offences of the same nature in the same bill. If an indictment thus framed charge two or more persons, who are put on trial together, for different offences, and the testimony does not implicate all of them in each offence, the inconvenience may be obviated, and the rights of the accused be protected by requiring the prosecuting officer to elect, for which offence he will proceed. Young v. The King, in error, 3 T. R. 106; The People v. Costello, 1 Denio, 83. Different counts are supposed to describe different offences, although but one offence may have been committed, which is differently described to meet any unexpected aspect of the testimony. Hence it is, that each count must appear to have been found upon the oath of the jurors. Holt, 687; 1 Chitty’s Cr. Law, 250.

It is true, as stated in the argument for the State, that one count may refer to another, and -thereby that, which if alone considered would appear to be defective, may be sufficient. But a defective count can be thus aided only, when there is a reference to another count for the allegation or fact required to make the defective count perfect. In this case there is no reference in the third count to another count for the allegation, that it was presented upon the oath of the jurors. It alleges, that “ the jurors aforesaid for the State aforesaid do further present,” without saying as aforesaid, or in manner aforesaid. In other words, there is nothing in the third count either of allegation or of reference, from which it can be made to appear to have been presented per sacramen-tara suum. '

It is further insisted that such an allegation cannot be essential in this State, because the grand jurors are sworn, before they enter upon the performance of their duties, to make true presentments. This however is not a new course of proceeding. The accused has a right to insist, that he is not legally called upon to plead and to incur the expense and odium of a trial, unless he finds an allegation in the indictment, that he was accused upon the oath of the grand inquest.

As the judgment must be arrested for this defective finding, it is not necessary to consider the other point presented.

Judgment arrested»