
    The State vs. McCann.
    Cutminal LAW. Practice — indictment—presentment—prosecutor. It is not essential that the record ¿wc by any order or memorandum, that the indictment is founded upon the £ resentment. If it appears that there had been a presentment made against the same individual for the identical same offence, for which he was indicted, that will be sufficient to show that the indictment was foundedpon the presentment, and to excuse the attorney general from the obligation to mark a prosecutor. Ruled accordingly, McHenry vs. The State, Knoxville, June term, 1837, not reported.
    
      The matter of this record from the circuit court of Johnson, after the usual caption, is of the following purport, and stands in the following order. 1. A memorandum of the grand jury’s returning into court a bill of indictment against Michael McCann, the defendant in error, and James McCann for obstructing a public road. 2. A presentment purporting to be made by the grand jury against the same persons for the same offence, signed by all the grand jury, but not accompanied with any notice of record of its having been made. 3. An indictment, purporting to have been preferred by Brab-son, attorney general for the first solicitorial district, against the same persons for the offence described in the presentment, endorsed — “a true bill,” and signed by the foreman of the grand jury, but without any prosecutor marked thereon. The foregoing appears as of November term, 1836. 4. Then follows as of March term, 1837, an entry of the appearance of the defendant in error, Michael McCann, his plea of not guilty, and a similiter on behalf of the state. 5. of the same term, the defendant’s recognizance to appear at the next term. 6. As of July term, 1837, an entry of leave granted, on the defendant’s motion for cause shown by affidavit, to withdraw the plea of not guilty, and of a rule to sho.w cause why the indictment should be quashed, “because no prosecutor was marked on the back thereof;” argument of the rule, judgment thereon, that the indictment be quashed and the defendant discharged, and appeal in error by the attorney general.to the supreme court, — all in.o.ne entry.
    June 9.
    Geo. S. Yerger, attorney general for the state.
    Nelson and Lucky for the defendant.
    The record in .this case shows that the grand jury returned into court a bill ,.of indictment against the defendant for obstructing a public .road. A presentment against t,he defendant for the same offence, is also incorporated into the record; but the indictment.does not purport to be founded on the presentment, nor does the record sho.w that the grand jury returned the presentment into court. No prosecutor is marked on the indictment, which was quashed, on motion, in the cir.cuit .court.
    The only question presented in this case is, was it necessary, upon this state of facts, that a prosecutor should have been marked upon.the indictment? To show that it was, we rely upon the act of 1801, c 30, and Chappel vs.. The State., 8 Yer. 170.
   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.  