State v. McCann ( 1838 )

Green, J.

delivered the opinion of the court.

This is an indictment for obstructing a public road. The only question is, whether there should have been a prosecutor marked upon the indictment.

The record contains a .copy of the presentment against the same party for the same offence, and if the indictment is founded on this presentment, there is no doubt but that it is properly prosecuted without .a prosecutor having been marked thereon. But it is insisted, and so the court below thought, that there is nothing in the record showing that the indictment is founded .upon the presentment.

This court, at the last term, in the case of McHenry vs. The State, decided that it is not essential that the record show by any order or memorandum, that the indictment is founded upon the presentment; but that if it appear, that there had been a presentment made against the same individual, for he identical offence for which he was indicted. that will be sufficient to show that the indictment was founded upon the presentment, and to excuse the attorney general from the obligation to mark a prosecutor.

We still adhere to that opinion, and therefore think the Gourt below erred in quashing the indictment in this case.

Reverse the judgment and remand the cause for a trial to be had therein.