
    THE STATE OF MISSOURI vs. JOHN WINRIGHT.
    In framing an indictment upon the 8th section of the act concerning marriages, it is not sufficient to pursue the language of the act: the indictment should specifically state the acts committed by the defendant, to enable the court to determine whether he has violated the law.
    APPEAL FROM ST. LOUIS CRIMINAL COURT,
   Judge Ryland

delivered the opinion of the court.

TheMefendant was indicted for that, he was a justice of the peace, (l did unlawfully marry, join in marriage, and solemnize the marriage of Cydney Smith, otherwise called America Smith, with and to Elijah Owens, she the said Cydney Smith, otherwise called America Smith, being then and there a female under the age of eighteen years, and under the age of legal consent, to wit, of the age of fifteen years, contrary,” &c. The second count is as follows : And the grand jurors aforesaid, upon their oath aforesaid, do further present, that John Win-right, late of Saint Louis, in the county of Saint Louis aforesaid, with force and arms, on the twenty-fifth day of June, in the year of our Lord one thousand eight hundred and forty-eight, at Saint Louis, in the county of Saint Louis aforesaid, he the said John Winright being then and there a justice of the peace in the fifth ward in the township of Saint Louis, within the city of Saint Louis, in the county of St, Louis aforesaid, duly elected, commissioned and qualified to perform the duties of justice of the peace as aforesaid, at the city of Saint Louis aforesaid, in the county of Saint Louis aforesaid, as such justice of the peace as aforesaid, unlawfully did marry, join in marriage, and solemnize the marriage of Cydney Smith, otherwise called America Smith, with and to Elijah Owens, she the said Cydney Smith, otherwise called America Smith, being then and there a female under the age of eighteen years and under the age of legal consent, to wit, of the age of fifteen years, no parent, nor guardian, uor any other person under whose care and government, she the said Cydney Smith, otherwise called America Smith, then and there was, being then and there present at the said marriage by the said Winright, nor giving their consent to said marriage, and the grand jurors aforesaid, upon their oath aforesaid, do further present, that neither the said minor, said Cydney Smith, otherwise called America Smith, nor any other person then and there at th& said marriage, produced any certificate in writing under the hand of any parent or guardian, nor under the hand of any person under whose care and government the said Cydney Smith, otherwise called America Smith, then and there was, contrary to the form of the statute in [such] cases made and provided, and against the peace and dignity of the State.

D. N. HALL, Circuit Att’y.”

On this indictment, the defendant was arrested, and afterwards moved to quash the indictment. 1st. Because said indictment does not rebut the regulations required by the section of the statute under which said indictment was found.

2d. Because said indictment does not allege that any person applied to the defendant to solemnize said marriage as required by the statute.

3d. Because the indictment is otherwise illegal, informal and defective. The court overruled the motion to quash. The defendant after-wards plead not guilty. The jury found a verdict of guilty, and the said defendant filed his motion to set aside the verdict and grant him a new trial—which motion he afterwards withdrew, and then filed his motion in arrest of the judgment.

The reasons assigned for the arrest of the judgment in this case, are as follows : “Because neither count of the indictment is sufficient to sustain the judgment.”

“ The first count charged no offence.”

“ The second count charged no offence.”

“ The judgment was for the wrong party.”

The court sustained the motion and arrested the judgment. The circuit attorney prayed an appeal—it was allowed.

The only point before the court for our adjudication, is the sufficiency of the indictment.

I consider the indictment defective. The^first count is so obviously defective as to need no remark. The second is faulty—it does not make the proper averments in relation to the presence and consent of the parents or guardian, or other person. It is equally faulty in the manner of stating the absence or want of the certificate in writing.

The pleader appears to have taken the statute, and without any sufficient averments of the facts necessary to make the justice'of the peace guilty of any infraction thereof, broadly states “no parent, nor guardian, nor any other person under whose care and government she the said Cydney Smith, otherwise called America Smith, then and there was, being then and there present at the said marriage by the said Winright, nor giving their consent to said marriage.” These averments, if such they can be called, are too loosely made. I therefore find no error in the judgment of the criminal court in arresting the judgment, and my brother judges agreeing with ipse in opinion, the judgment below is affirmed.  