State v. Leach ( 1855 )

The opinion of the court was delivered by

Bennett, J.

We think the motion in arrest must prevail, and it is only necessary to consider a single objection to the indictment. There is no averment in it, that Lee testified to a given statement of facts, there being an omission, though, no doubt, by mistake, of the verb. But can this omission be supplied or cured by intendment. We think not. No latitude of intention is allowed to include anything more than what is expressed. 1 Chitty’s Crim. Law, 172. The office of an intendment is to help out a defective averment, and not to supply the want of one. The averment that Lee testified so and so, setting out his testimony in substance, is of vital importance ; and the insertion of the verb is necessary to imply any action on the part of Lee.

The judgment then, of this court, is that the judgment of the county court upon the motion in arrest is reversed, and judgment that the indictment is insufficient.