
    Davidson Kirk vs. The State of Mississippi.
    Under the statutes and decisions in this state, it is a defect fatal to an indictment that no prosecutor is marked on it; for which, even after verdict, new trial refused below, sentence there, and writ of error to the high court of errors and appeals, the indictment will be quashed, and the prisoner remanded for a new indictment.
    
      Under the statutes of this state, but one witness is requisite to a will of personalty ; and such will may be admitted to probate on proof by one witness, though there may be other witnesses to the. will whose proof is not taken.
    Wills upon probate are required by the statute to be kept in the court of probates, and authenticated copies of them are made evidence in any court of the state; where, therefore, on a criminal trial, it becomes necessary to give evidence of such will, an authenticated copy will be sufficient.
    In error from the circuit court of Panola county; Hon. Francis M. Rogers, judge.
    The facts will be found in the opinion.
    
      F. Anderson, for plaintiff in error,
    Insisted that there were numerous fatal defects in the record, which he pointed out; and among others, that no prosecutor was marked on the indictment.
    
      D. C. Glenn, attorney-general for the state, replied at length to the points made by Mr. Anderson.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an indictment in the circuit court of Panola, for negro stealing. Upon the trial, the defendant was found guilty, and sentenced to confinement in the Penitentiary for ten years. A motion was made for a new trial, which was overruled, and the case thence comes to this court.

One only of the errors assigned, is sufficient to reverse the judgment. There is no prosecutor marked upon the indictment. According to several decisions of this court, that is a fatal objection. Moore v. The State, ante, 259.

The only question as to this was, whether, in a case in which the writ of error was sued out to the refusal to grant a new trial, the objection could be taken, in that stage of the proceedings. It would appear to have been thus taken in the case of Cody v. The State, 3 How. 27. And as the statutes of jeofails and amendments do not extend to criminal proceedings, it follows that every error which would have been fatal on demurrer, or in arrest of the judgment, will be sufficient to procure its reversal. 1 Ch. Crim. Law, 751.

The judgment must be reversed, and the indictment quashed, and the prisoner remanded to the county of Panola for a new indictment.

An objection was taken to the admission of a certain will in testimony upon the trial, which it may be important now to determine, as the point will probably arise on the next trial again. The objection is, that the will was admitted to probate upon insufficient testimony, and that the original should have been produced, or its absence accounted for, before the copy could be read.

Both these objections are conclusively disposed of by the statute. One witness is sufficient to a will of personalty. Hutch. Code, 649. Wills after probate are required to remain in the court of probates, and an authenticated copy is made evidence in all the'Courts of the state. Ib. 650.

Judgment reversed.  