State v. Davidson

12 Vt. 300

• Court: Supreme Court of Vermont
• Decided: February 15, 1840
• Status: Published

Opinion

The opinion of the court was delivered by

Bennett, J.

— To hold that the indorsement of this bill of indictment, by the grand jury, is insufficient, would indeed be a high degree of refining.- The words' of the indorsement refer to the bill found by the grand jurors with as much certainty as if the article, Á, had been prefixed to the words, “ True Bill,” and it cannot be important, or of any consequence, that it should be' prefixed. If there was any thing in this objection, it might be important to enquire whether such a defect could be reached by a motion in arrest.

It is also claimed that there is a variance between the'-indictment and proof.

Tt is said that the indictment alleges that the issue was, in fact, joined in the suit of Laura Ann Munson v. Apollos Hastings, at the April term of the county .court, 183S, when the record given in evidence shows that the issue was made up at the September term, 1837. We think .the allegations in the indictment do not require the construction claimed by the counsel for the respondent.

The indictment alleges that amongst the pleas of said term, (viz. April term, 1838,) a certain issue was duly joined in said cause,” &c. We think that this averment does not imply the act of joining the issue, in fact, at .that term of the court, but rather the state in which the pleadings in the cause were then founed. The parties were then,at issue, duly joined. With this construction of the indictment, there is no ground for the objection.

There is no occasion that we should pass upon the second count of the indictment. Upon a general verdict.of guilty, if one count in the indictment is sufficient, the prisoner must receive the sentence of the law.

The motion in ^arrest is overruled and the prisoner takes nothing by his exceptions. The sentence .of the law was then pronounced.