The opinion of the court was delivered, by
Read, J.By the Criminal Procedure Act of 1860, modelled after the Act of 14 & 15 Vict. c. 100, the extreme niceties and refined technicalities which prevailed in relation to indictments are abolished, and an indictment now is little more than a simple statement of the offence, such as good sense and regard for the accused alone would suggest. By the 11th section it is expressly provided that every objection to any indictment for any formal defects apparent on the face thereof, shall he taken ■ by demurrer, or on motion to quash such indictment before the jury shall be sworn, and not afterwards, and of course a motion to quash must be decided before the jury is sworn and not afterwards; and if the court refuse to quash, they cannot quash it after the jury is sworn. Their power to do so is then ended.
All the minor objections to the first count are thus disposed of by this provision, and the only one we have to consider is that of duplicity in charging two offences in the same count. Now, the offence really charged in this count is the fraudulent obtaining the signature of Amos Maride to a promissory.note for the payment of the sum of $300, and what is stated afterwards of the actual payment of the note is not another offence, but simply as an aggravation and was surplusage, and might have been stricken out by the court on the motion to quash. Surplusage is as in-noxious in criminal as in civil proceedings: Dawson v. People, 11 Smith (N. Y.) 399, 408.
We think that the indictment should show what the false pretences were, and in this particular the counts that were quashed were defective. The court were wrong in arresting the judgment. The judgment is therefore reversed, and the record remitted to the court below to proceed to sentence according to law.