State v. McAloon

Goodenow, J.

The 26th Rule of Court, referred to by the Attorney General, was probably intended to be applied to civil cases only. It was made before the statute disallowing motions in arrest of judgment in civil cases.

The late Rule 19, was made since this case was tried, and is confined to criminal cases. It requires that motions in arrest of judgment, in criminal cases, shall be filed and presented to the Court for adjudication, during the term in which the accused has been found guilty.

At common law the defendant may move at any time in arrest of judgment, before sentence is actually pronounced upon him ; and even when the defendant waives the motion, yet if the Court, upon a review of the whole case, are satisfied that he has not been found guilty of any offence in law, they will themselves arrest the judgment. 1 Chitty’s Crim. Law, 663. As a general rule, it is necessary to allege,in an indictment for larceny, the ownership of the goods stolen to be in some person. There were some cases, under English statutes, where it was unnecessary either to allege or prove the ownership of the property stolen; but they were exceptions to the general rule. Roscoe’s Crim. Ev. 579.

In an indictment against a receiver of stolen goods, it is necessary to allege and prove the ownership of the property stolen ; or that the principal has been duly convicted.

The indictment in this case contains no such allegation. It is fatally defective.

Exceptions sustained. — Judgment arrested.

Rice, J., took no part in the decision.