65 Mass. 472 | Mass. | 1853
The second ground for the present motion is disposed of by the case of Commonwealth v. Drew, 3 Cush. 279. It was there decided that the pendency of one indictment is no ground for a plea in abatement to another indictment in the same court for the same cause. A fortiori, it is not a ground for arresting judgment.
The first reason assigned for the motion in arrest cannot avail the defendant. It is conceded by his counsel that the omitted averment need not have been proved, if it had been inserted. But he contends that the indictment is fatally defective without the averment. On principle, we have no doubt that the averment, that the party murdered was then and there in the peace of the commonwealth, would have been surplus-age, and that the omission of it is wholly immaterial. There is no more reason for inserting it than for inserting the averment that the defendant, “ not having the fear of God before
Motion overruled