dissenting. I concur in the opinion of my brethren, that the former legislation is to be left entirely out of view, in considering the right of the attorney general to institute this prosecution by information, with the single exception of the act of 1805, which' establishes the common law as the rule of proceedings in criminal cases, and which has served as a guide for our courts ever since in criminal matters.
The reasons which have compelled me to withhold my assent to the conclusion of my brethren that, the law of 1841 is still in force, are these :
1. That law is of a peculiar character; it is an exception to the general law of the State. It subjects the person committing a crime within the first district to prosecution at the will of the attorney general, against which, if the crime were committed in any other portion of the State, he would have been protected. 2. However convenient the prosecution by information of the offence of larceny may be in the administration of justice, and the law was passed undoubtedly to meet the exigencies created by the accumulation of criminal business in this capital, I do not consider that this mode of prosecution is necessary in a legal sense, that is, the mode of prosecution by indictment is adequate to ensure the punishment of all offenders. 3. The law of 1841 takes from the accused the protection of a grand juiy. In criminal cases, except in misdemeanors, independent of this law, before the defendant can be put to answer the charge against him, the accusation must be warranted by the decision under oath of twelve men.
The Criminal Court of the First District having ceased to exist, and this law being recognised by no part of the act of 1846, organizing the District Courts, as I understand it, I do not feel myself at liberty to adjudge it to be saved by a remote and unnecessary implication.
I think the judgment ought to be arrested.*
Judgment affirmed.
The Chief Justice must he considered as dissenting from the judgment in the case of ^ the State v, Crosby, ante p. 434, so far as that case, being a prosecution by information before the JTivst'Districfe Court of New Orleans, under the statute of 8th of March, 1841, conflicts with the dissenting opinion in this case. ft.