#### George Riflemaker *v.*The State of Ohio.

1. An objection to an indictment that it is not properly signed at the end thereof by the prosecuting attorney of the county, if such omission constitutes a defect at all, is waived by pleading the general issue, without having first moved to quash. Orim. Code, sec. 111.

2. On an indictment for *maliciously*cutting with intent to wound, a verdict of “guilty of cutting with intent to wound,” is not sufficient to sustain a judgment as upon conviction.

Error to the Court of Common Pleas of Ottawa county.

At the January term, 1875, of the court below, the grand jury presented an indictment, containing three counts, against the plaintiff’. This indictment was signed at the end thereof by A. Kraemer, assistant prosecuting attorney* *396Ottawa county, Ohio, and was indorsed “ a true bill ’.by Ohalon Gordon, foreman of the grand jury.

The first count charged the offense of maliciously stabbing with intent to kill, under the 24th section of the crimes act. The second count charged the offense of maliciously cutting with intent to wound, under the same section. The third count charged the offense of unlawfully and purposely cutting with intent to maim and disfigure, under the 23d section of the same act.

To this indictment the defendant below (plaintiff in error) pleaded “ not guilty,” and was afterward, at the same term, put upon trial before a jury, who returned a verdict as follows : “ The jurors in this case find the defendant guilty of cutting with intent to wound. Geo. Wright, foreman.”

After verdict the defendant moved in arrest of judgment, for the reasons, among others, that the jury did not, by their verdict, find him guilty of any offense charged in the indictment, and that the verdict did not respond to all the counts in the indictment; and also moved to set aside the verdict, and for a new trial, for certain reasons named in the motion.

These motions having been overruled and exceptions taken, the prosecuting attorney, by leave of the court, entered a *nolle prosequi*as to the first and third counts in the indictment, and thereupon the court sentenced the defendant to imprisonment in the penitentiary for a term of years, etc.

It appears from the bill of exceptions, that A. Eraemer was appointed assistant prosecuting attorney under section 6 of the act of April 30, 1852, in relation to prosecuting attorneys.

*H. & L. H.*Goodwin, for plaintiff in error:

1. The verdict was not responsive to the indictment, nor did it respond to either count of the indictment. Hence the judgment was erroneous. Warren Crim. Law, 160; *Wilson*v. *The*State, 20 Ohio, 26; *Hurley*v. *The State,*6 Ohio, 404; *Wilson*v. *The State,*18 Ohio, 144.

*3972. The indictment should have been signed by the prosecuting attorney. The constitution provides that no party shall be held to answer for a penitentiary offense, except on an indictment by a grand jury. And we say that a person should not be held to answer an indictment unless the indictment is sanctioned by the only officer which the law has provided to prosecute it and be responsible for it. Section 6 of the act of April 30, 1852 (S. & C. 1226), is not sufficient authority for the signing of the indictment by an assistant prosecuting attorney.

*W.*W. *Atkins*and *A. Kraemer,*for the state.

McIlvaine, C. J.

1. The indictment in this case was. signed, at the end thereof, by an assistant prosecuting attorney, but not by the prosecuting attorney of the county. It is therefore claimed to be insufficient.

It is by no means clear, under our laws, that an indictment found to he a true bill by the grand jury, and properly indorsed by its foreman, need be signed at the end by any law officer of the state. But, however that may be, it is quite clear that the omission of such signature is a defect in the form of the indictment merely, and does not affect its essential averments. And, while it is true that every person accused of crime has the constitutional right *“*to demand the nature and cause of the accusation against him, and to have a copy thereof,” it is also true, that as to matters of mere form in an indictment, the subject is under the-control of the legislature.

Section 107 of the criminal code provides, that “ a motion to quash may be made in all cases when there is a defect apparent upon the face, of the record, including defects in the form of indictment.” And section 111 provides that, “the accused shall he taken to have waived all defects which may be excepted to by motion to quash ... by pleading the general issue.”

In the case before us, without having moved to quash, the defendant pleaded the general issue, and afterward objected to this alleged defect in the form of the indictment,. *398for the first time, by motion in arrest of judgment. The ■objection came too late.

2. The defendant below also moved in arrest of judgment and for a new trial, on the ground that the jury, by their verdict, did not find him guilty of any crime charged in the indictment. The verdict was “ guilty of cutting with intent to wound.” Counsel for the state claim that this was a verdict of guilty under the second count, which charged a •“ malicious cutting with intent to wound.” "We think this verdict did not respond to the whole charge as made in this count, but omitted to find the essential ingredient of malice. This finding is not equivalent to a verdict of guilty, as charged in the second count. .If the verdict had been “ guilty,” and nothing more, or “ guilty under the second •count,” it would support the judgment. In such form, it would be taken to mean “ guilty as charged.” But in the form before us, the guilt of the defendant is limited, in terms, to the mere fact “ of cutting with intent to wound.” On the trial, the fact “of cutting with intent to wound” •was not controverted, but was sought to be justified on the ground that it was done in self-defense. Upon the face of this verdict, when strictly construed, and we are bound to ■construe it strictly, the existence of this ground of defense is not ignored. The motion of the defendant below should therefore have been granted.

3. It is conceded that the verdict was defective in not responding to all the counts of the indictment. It is contended, however, on the part of the state, that this defect was cured by the subsequent entry of a *nolle prosequi*as to the first and third counts. It is not necessary for us now to determine the effect of such practice, further than to say that the second count, being the only one now pending against the plaintiff in error, the cause will be remanded for ,a new trial on that count, or for such other proceedings as may be allowed by law.

*Judgment reversed and cause remanded.*

Welch, White, Rex, and Gilmore, JJ., concurred.