Polsten v. State

Ryland, J.,

delivered the opinion of the court.

The defendant was indicted by the Grand Jury of Cape Girardeau county, at the November term of the circuit court, eighteen hundred and fifty, for the crime of arson.

He was tried at the same term, and found guilty of arson in the third degree, and sentenced to the State penitentiary for five years, and from this judgment he appeals to this court. The record of the proceedings in the circuit court, contains no bill of exceptions — none of the evidence appears, no motions properly appear on the record.

The only question in the case, arises upon the indictment. The omission to insert the word “fire” as it appears in the above statement._ *465the words are “did set-- to and the same hous.e, then and there by the kindling of such fire, did feloniously, wilfully and maliciously burn, and consume, &e.”

This is obviously a clerical mistake. The question arises, will the mistake vitiate the indictment?

We are inclined to think it will not — the statute on which the indictment is based declares, that “Every person, who shall set fire to or burn, &c.” Here the circuit attorney in attempting to make the charge embraces both clauses of the section, omits^the important word in the first clause, “fire,” but includes the second clause. The indictment would have been good had it contained the second clause only, that is the “burning of the house,” and the informal attempt to include the first clause may be rejected as surplusage.

We think the circuit attorney in his argument above set forth, has taken the true and proper view of this subject, and that the law of this case is as he therein asserts it to be.

The judgment is affirmed.