
    State vs. Thomas Malohey.
    
    In criminal practice objections to tbe constitution of the grand jury should be taken by plea in abatement.
    Pleas in abatement and motions to quash the indictment must precede the general issue and not follow it.
    Refusal to quash an indictment for a fatal defect apparent on the record, is ground for an exception.
    Refusal to compel a prosecutor to elect upon which of several counts he will go to trial is not ground for an exception.
    An indictment charged that the defendant “ did obstruct one A., he, the said A., then and there being a civil officer, to wit, a police constable of said Lincoln, and then and there being in the execution of his said office, against the form of the statute,” &c.
    JEeld, bad, because it contained no averment that the defendant knew the official character of A.: also because it did not set forth the official duty performing by A., and what was done to obstruct him.
    EXCEPTIONS to tbe Court of Common Pleas.
    An indictment was found against tbe defendant in tbe Court of Common Pleas as follows :
    “ The grand jurors of the State of Rhode Island and Providence Plantations, and in and for the county of Providence upon their oaths present: That Patrick Dugan, laborer, Patrick Ma-loney, laborer, and Thomas Maloney, laborer, of Lincoln, in said county, on the fifteenth day of October in the year of our Lord one thousand eight hundred and seventy-seven, with force and arms at Lincoln aforesaid, in the aforesaid county of Providence, did obstruct one Andrew J. Patt; he the said Andrew J. Patt then and there being a civil officer, to wit, a police constable of said Lincoln, and then and there being in the execution of his said office; against the form of the statute in such case made and provided and against the peace and dignity of the State.
    “And the jurors aforesaid upon their oaths aforesaid do further present: that the said Patrick Dugan, laborer, and Patrick Maloney, laborer, and Thomas Maloney, laborer, of said Lincoln, in said county, on the day, month and year last above written, with force and arms at Lincoln aforesaid, in the aforesaid county of Providence, in and upon the said Andrew J. Patt did make an assault, and the said Andrew J. Patt did then and there beat, strike and kick; against the form of the statute in such case made and provided and against the peace and dignity of the State.”
    Preferred by the attorney general and signed by thirteen grand jurymen.
    Before the trial in the Court of Common Pleas the defendant Maloney asked the court, —
    1. To quash the indictment .because it was not found by a legal grand jury. The reasons for this request are stated in the opinion of the court.
    2. To quash the first count of the indictment because it did not “ set forth with sufficient clearness and exactness any crime or offence known to the law.”
    And after the evidence was closed the defendant Maloney asked the court,—
    3. For an order directing the prosecution to elect on which count of the indictment, and also on which of the several assaults referred to in the testimony, it would proceed.
    Each of these requests was refused and to each refusal an exception was taken.
    
      January 27, 1879.
    
      
       See State v. Davis, infra.
      
    
   Dtjeeee, C. J.

This case is brought before us from the Court of Common Pleas, by exceptions, alleging error in the rulings of that court.

The first error alleged is that the court below overruled a motion to quash the indictment for a defect in the constitution of the grand jury. The motion set forth that one of the grand jurors resident in Providence was incompetent to act because he was not qualified to vote upon any proposition to impose a tax, or for the expenditure of money in any town or city in the State. In support of the motion the affidavit of James C. Hidden, one of the assessors of taxes of the city of Providence, was produced, which set forth that the grand juror had not since October 13, 1876, been taxed for any real or personal estate in the city of Providence. The indictment was found at the December term of the Court of Common Pleas, A. D. 1877.

We think the proper mode of taking advantage of a defect in the constitution of the grand jury, not apparent on the record, is by plea in abatement, which of course must precede a plea of not guilty, and, if the defect can be taken advantage of by motion to quash, that the motion must likewise precede a plea of not guilty, which in the case at bar it does not appear to have done. 1 Bishop Crim. Proc. §§ 730, 756 ; The People v. Robinson, 2 Park. Cr. 235, 311 ; State v. Carver, 49 Me. 588, 591.

Moreover the exceptions do not show upon what ground the motion was dismissed. It may have been dismissed for want of satisfactory proof of the alleged disqualification. The affidavit, if true, is not conclusive; for the juror, though not taxed, may have been qualified under Article 2, § 1, of the State Constitution.

The second error alleged is the refusal of the court below to quash the first count of the indictment. The first count charged that the defendant “ did obstruct one Andrew J. Patt, he the said Andrew J. Patt then and there being a civil officer, to wit, a police constable of said Lincoln, and then and there being in the execution of his said office, against the form of the statute,” &c. The defendant contends that the count is insufficient in two respects, namely, first, because it does not aver that the defendant knew the officer to be an officer when he obstructed him; and second, because the count does not set forth what official duty the officer was discharging when he was obstructed, or what was done to obstruct him.

The court is of the opinion that the first count is fatally defective in not averring that the defendant knew the officer to be an officer when he obstructed him. Commonwealth v. Kirby, 2 Cush. 577 ; Commonwealth v. Cooley, 6 Gray, 850 ; State v. Downer, 8 Vt. 424, 429; Kernan v. The State, 11 Ind. 471; United States v. Tinklepaugh, 3 Blatch. 425 ; United States v. Keen, 5 Mason, 453; Commonwealth v. Israel, 4 Leigh, 673; State v. Hilton, 26 Mo. 199.

We also think the first count is defective in not setting forth what official duty the officer was performing and what was done to obstruct him in its performance, though we are not prepared to go so far as some of the cases which hold that, if the officer was engaged in the service of a writ or warrant, it is not enough to have the writ or warrant designated, but it must be set forth in totidem verbis. State v. Downer, 8 Vt. 424; State v. Burt, 25 Vt. 373 ; Lamlerton v. Ohio, 11 Ohio, 282; Faris v. The State, 3 Ohio St. 159 ; Commonwealth v. Stout, 7 B. Mon. 247. Simply to charge in the language of the statute that the accused obstructed the officer, is extremely vague and uncertain. The language of the statute previous to the last revision was much more full and explicit than it is now, and hence probably the practice of charging the offence simply in the language of the statute has not previously attracted criticism.

The attorney general contends that even if the first count in the indictment is defective, a motion to quash it on that account, being addressed to the discretion of the court, is not revisable for error and that therefore the exception cannot be sustained. And there are cases which go to that effect.

We think, however, where the motion is grounded on a fatal defect apparent on the record, that no good end is served by refusing revisal, and under our statute we think the exception may properly be sustained.

The third error alleged is that the court below refused to compel the attorney general to elect on which count or for which assault he would proceed.

We think the exception cannot be sustained. A motion to compel a prosecutor to elect upon which of several counts in an indictment he will go to trial, is always addressed to the discretion of the court and is not revisable for error. And we think the court properly refused to compel the attorney general to elect for which of the so-called several assaults he would proceed, inasmuch as they all appear to have been part and parcel of tbe same transaction.

Willard Say les, Attorney General, for plaintiff.

Charles E. Grorman, for defendant.

No question is made in regard to tbe sufficiency of tbe second count, wbicb is a count for assault and battery.

We overrule tbe first and third exceptions; we sustain tbe second exception and quash the first count of tbe indictment, and we remand the cause to tbe Court of Common Pleas for sentence on tbe second count; being of tbe opinion that the defendant is not entitled to a new trial because tbe verdict was against tbe evidence.  