
    The State v. Russell.
    ft formal averment in an indictment that it was found by the authority of the .State, is not essential to its validity. It is a sufficient .compliance with the 69th art. of the constitution, that the prosecution appear ,to be conducted, in the name of the State.
    APPEAL from the First District Court of New Orleans, McHenry, J, The indictment on which this prosecution jyas founded commences as follows :
    The State of Louisiana.,
    (‘ First Judicial District, ss.
    “ Parish of Orleans, First District .Court of New Orleans : The grand-jurors pf the State of Louisiana, duly empannelled and sworn in and for the body of the parish of Orleans, upon their oath present, that one Edward Russell," &e. It concludes : “ contrary to the form of the statute of the State of Louisiana jn such .case made aqd provided, and against the peace and dignity of thp £>an)e,”
    
      Elmor.e, Attorney General, for the State, contended that the indictment was framed as required by the constitution,
    ..citing State v. Anthony, 1 McCord, 285. Allen v. Commonwealth, 2 Bibb. -210. Wharton’s Am. Crim. Law, pp. 64, 65,103,1-04. 5 Pike, 445. 1 Walker Miss. Rep. 392. ■ ■ . .
    
      Larue and Bryee, for the appellant,
    cited the Const, arts, 69, 117. Journal of Convention of 1845, pp. 29.7, 331, 348.
   The judgment of the court was pronounced by

King, J.

The defendant, Edward Russell, was convicted of manslaughter upon an indictment charging him with murder, and he moved for an arrest of judgment on two grounds: 1st. That the indictment does not aver, with suffi.cient .certainty, that the deceased died ..of the mortal blows .charged to have been given by the accused. 2dly. That the indictment does not purport in its margin, or in the body, tob.e carried on “in the name and by the authority of the State of Louisiana,” and does-not conclude “against (the pe,ac,e and dignity of the same.” This motion was overruled and sentence pronounced, and the accused hps appealed.

The clause o,f the indictment in which it is contended that the first of the alleged errors exists, is in the following words, viz.; ■“ of which mortal strokes, blows, wounds and bruises, given as aforesaid, the said Margaret Russell, then and there did suffer and languish, and languishing did live, and on the seventeenth day pf said month of June, in-the year of our Lord ,one thousand eight hundred and forty-six, in the parish of Orleans aforesaid, of said mortal wounds did die.” It is contended.that there is a period at the word Upa, .and that what follows, beginning with .the words, and on the seventeenth,” &.c., is a separate sentence, disconnected from the preceding .ayeyments of the mortal blows dealt, and that there is consequently noavernyent,that the deceased died of the mortal wounds alleged to to have been given by the accused.

An inspection of,the original instrument has satisfied us that the sentence is unbroken by a period, and that the objection is based upon peculiarities of the hand-writing of the framer of the indictment. The point used at the word live, resembles somewhat a period, b.ut by comparing it with the punctuation of the remainder of the instrument, it is ev.iilent that a comma is the point used. That •it was not the intention of the framer to use a full stop is further apparent, from the fact .that the point used is not followed by a capital letter, and that the sense .of the sentence, and its grammatical construction, require thatitb.e unbroken by .a period.

The second ground we deenj to be equally untenable. The expressions, -which itis contended should be need in the indictment, occur in,the constitution# ¡of several States of the Union, ¡and the point now presented has been so frequently decided in those States that it can s.carc.ely be considered an open •question. It has been repeatedly held to be a sufficient compliance with .th.e constitutional requisition, that the prosecution should uppe.ar to be conducted in the name of the State, and that a formal avermpnt that it was found by the authority of the State, was not escential .to the validity of the indictment. 5 Howard’s Miss. Rep. 36. State v. Johnson, Walker’s Miss. Rep. 392. Allen v. Commonwelth, 2 Bibb’s Rep. 210. 1 McCord, 285.

In the case of The State v. Calvin Moore (8 Rob, 518), decided by the late Court of Errors and Appeals in Criminal Cases, these words were neither directly nor impliedly held to be essential to the validity of an indictment. The Janguage of the instrument was merely quoted, from which it appeared that it contained tlic expressions which the defendant intended were required by the constitution, and consequently that the objection urged was without foundation; but there >was no intimation .of an opinion that,their absence would have been fatal. Judgment affirmed-  