7 Cow. 535 | N.Y. Sup. Ct. | 1827
inquired of the Hon. W. M. Oliver, a counsellor of this court, who was present at the bar, and who was also a member of the court of errors, on what ground that court held the indictment to be erroneous ?
Oliver. I understood it to be on the ground that the means agreed on by the conspirators were not set forth in the indictment; so as to show that such means were criminal.
Curia. That settles the question, then, that the indictment in this cause is defective. It is matter of discretion whether an indictment shall be quashed for its alleged insufficiency, or the party be put to move in arrest of judgment. In a doubtful case, we should not sustain the present *motion. But this is no longer such a case, since the decision of the court of errors. We also observe that notice of this motion has been given to the district attorney and it is not even resisted. The motion must be granted.
It is also proper to mention, that the decision as to the defendants who now apply, extends to the whole indict-
Rule accordingly.
See Waterman’s Archbold’s Cr. Pr. and Pleading, tit. Conspiracy.
