
    *Commonwealth v. Dever.
    December, 1840.
    Indictments — Omission ot Title of Prosecutor — Effect. —The omission to write the title or profession of the prosecutor at the foot of an information or indictment, is no ground of exception, either by motioh to quash or plea in abatement.
    The grand jury impanneled in the circuit superior court of Harrison county, at October term 1839, found an indictment against James Dever, for an assault and battery upon Rachel Wilkinson, wife of Joseph Wilkinson. At the bottom of the indictment were written the following words: “Upon the information of Rachel Wilkinson wife of Joseph Wilkinson of Harrison county, sworn in court at the instance of the said Joseph Wilkinson, prosecutor, and sent to the grand jury to give evidence.” At October term 1840, the defendant moved the court to quash the indictment, “because the title or profession of the prosecutor is not written at the foot of the said indictment, or elsewhere:” and thereupon the court, with the consent of the defendant, adjourned to this court the questions, 1. Whether the indictment ought for that reason to be quashed? 2. What judgment ought the court to render upon said motion?
    
      
       Indictments — Failure to Append Names of Prosecuting Witnesses — Effect.—Com. v. Williams, BGratt. 702, basing its decision upon the principal case, holds that the omission by the grand jury to write the names of the witnesses, on whose testimony an indictment Is found, at the foot thereof, is no ground for quashing the indictment.
      In State v. Shores, 31 W. Va. 496, 7 S. E. Rep. 416, it is said : “ The further objection is made to the indictment that the names of the witnesses, on whose evidence the indictment was found, were not written at the foot thereof in accordance with the requirements of the statute. This court held in the case State v. Enoch, 26 W. Va. 253, founding its decision on Derer’s Case, 10 Leigh 685, and Williams’ Case, 5 Gratt. 702, that the statute was directory, and the omission did not vitiate the indictment. We are asked to overrule these authorities, and hold the indictment fatally defective. * * * The statute held directory in Com. v. Lever, 10 Leigh 685, required 1 the title or profession of the prosecutor to be written at the foot of an information or indictment.’ In Williams’ Case, 5 Gratt. 702, the statute, held to be merely directory, is substantially the same as that in force when Enoch’s Case was decided, and is now in our Code. Williams’ Case was decided 40 years ago and we have no inclination to disturb it now. Whatever may have been decided elsewhere, we hold the law to be settled in Virginia and this state that such a statute is not mandatory but directory.”
      Shelton v. Com., 80 Va. 450, 452, 16 S. E. Rep. 355, and Porterfield v. Com., 91 Va. 801, 803, 22 S. E. Rep. 352, on the authority of the principal case, and Williams v. Com., 5 Gratt. 702, also hold that the Code of 1887, sec. 3984, requiring names of witnesses to be written at the foot of the indictment is directory merely. See principal case also cited in Thompson v. Com., 88 Va. 49, 13 S. E. Rep. 304, where it is held that § 3991. Va. Code 1887, applies only to misdemeanors.
      See generally, monographic note on “ Indictments, Informations and Presentments Boyle v. Com.. 14 Gratt. 674. appended to
    
   SMITH, J.,

delivered the opinion and judgment of the court. — A majority of the court are of opinion that the act of assembly, 1 Rev. Code, ch. 169, \ 45, p. 611, requiring the title or profession of the prosecutor to be written at the foot of an information or indictment, is only directory to the officers of the court, and though the requisition be not complied with, the defendant can take no exception on that account, either by motion to quash or plea in abatement. The court is therefore of opinion and doth decide, 1. That the indictment in this case ought not to be quashed. 2. That the motion to quash ought consequently to be overruled.  