
    The State, Appellant, vs. Derossett, Respondent.
    1. After the defendant was convicted for unlawfully killing a stray which he had taken up, the judgment was held properly arrested, because the indictment did not sufficiently state that the defendant did the killing.
    
      Appeal from Polk Circuit Court.
    
    Gardenhire, (attorney general,) for the State.
    
      F. P. Wright, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The grand jury indicted Derossett at the April term, 1853, of the Circuit Court within and for the county of Polk. At-the October term following, Derossett appeared, and plead to the indictment, “ not guilty ;” a jury was empanneled to try the issue thus made, who found the defendant guilty; but failing to assess his punishment, the court assessed his fine at the sum of twenty dollars. The defendant moved in arrest of judgment, assigning the insufficiency of the indictment. This motion the court sustained. The circuit attorney excepted to the opinion of the court, and brings the case here by appeal. The indictment is as follows : “ The grand jurors for the state of Missouri, empanneled, charged and sworn to inquire within and for the body of the county of Polk aforesaid, upon their oath present, that John Derossett, late of the county of Polk aforesaid, on the tenth day o£ November, in the year of our Lord, eighteen hundred and fifty-two, did then and there, to wit, at the county of Polk aforesaid, take up as a stray one bull, and had then and there the same valued and posted according to law, before J. K. Dial, a justice of the peace for said county, at the county aforesaid, before the expiration of one year from said tenth day of November, in the year aforesaid, at the county aforesaid, kill said bull, and convert him to his own use, contrary,” &c.

This indictment is not good and sufficient in law. It is materially and fatally defective. The averment that the bull was killed, does not charge the defendant with the act. We are left to conjecture by whom the killing was done. The court, therefore, properly arrested the judgment, and, by the ■concurrence of the other judges, its judgment is affirmed.  