#### The State v. McCarty.

1. Indictment — caption—amendment.—An indictment cannot he amended, after it has been returned by the grand jury, in any material part. If improperly amended, judgment thereon -will be arrested.

2. Same. — -It is not essential to state at length in the caption to an indictment the qualifications of the grand jurors, nor to recite the facts which give the court jurisdiction, if it be one of general criminal jurisdiction.

3. Same. — The allowance of an amendment to the caption of an indictment, which is no part of the indictment; in respect to a matter which needed no amendment, is no cause for arresting judgment.

(2 *Ohand.*199.)

CERTIFIED case from the Circuit Court for *Brawn*County.

This matter came into this court on the certificate and report of the circuit judge holding the circuit court for Brown county, to be advised in accordance with the statute. It will be seen by the opinion of the court that the matter arose, upon a motion of the district attorney to amend the caption of an indictment found against McCarty, when the same was called for trial, which motion was granted, and *McCarty*was found guilty, and his sentence suspended in order to obtain the opinion of this court upon the .question raised upon the allowance of the amendment.

*iS. B.*Cotton, for *McCarty,*

argued that the caption of an indictment is an essential integral part of it, and as much the finding of the jury or any other portion of it; and to this point cited 1 Chitty’s Crim. Law, 325, 326, 328, 335; 1 Hawk. P. 0. 327 ; 1 Stark. 220, 222. That in this state the caption *514is material, under tbe provisions of tbe constitution, and could not be amended after it was filed. 1 Cbitty’s Grim. Law, 336 ; 2 Hawk P. C. Tbat a verdict did not cure a defective indictment.

*G. James,*in bebalf of tbe state for tbe attorney-general,

argued tbat it was not cause for arresting judgment, because there was no sufficient caption to an indictment. Wheat. Am. Com. Law, 65,66 ; *People v. Jewett,*3 Wend. 319.

WhitoN, J.

This’case comes up on tbe report of tbe ch’-cuit judge before whom tbe cause was tried. Tbe defendant was indicted for murder.

Tbe indictment charging tbe offense commences as follows :

State oe WISCONSIN, *) Circuit Oounty of Brown,*ss.:

Of October term, in the year of our Lord one thousand eight hundred and forty-nine.

“The jurors of tbe grand jury for the state of Wisconsin, inqtdring in and for tbe county of. Brown aforesaid, being duly tried, empanelled and sworn, do, upon then- said oaths, present,” etc.

After tbe defendant bad pleaded to tbe indictment, tbe district attorney moved to amend it, by inserting after tbe words “state of Wisconsin” in tbe second line, tbe words “good and lawful men of tbe county .aforesaid,” and also after tbe word “aforesaid” at tbe end of tbe third line, tbe words “ at tbe October term of said circuit court, begun and holden at Green Bay in tbe said county, on tbe first Monday of October, in tbe year of our Lord one thousand eight hundred and forty-nine.” Tbe amendments were allowed by tbe court, and the jury having found tbe defendant guilty, tbe judge being in doubt as to tbe correctness of bis ruling, certified tbe case to this court in accordance with tbe statute.

If tbe amendments were at all material, their allowance would be good cause for arresting the judgment. Indictments .cannot be amended. But tbe amendments allowed were to *515the caption, and that is no part of the indictment. 1 Chit. Crim. Law, 326; *The People v.*Jewett, 3 Wend. 319. And we are satisfied that in this case the caption was correct, as it stood before the amendments were allowed. It is not necessary to state at length, in the caption to an indictment, the qualifications of the grand jurors, nor to recite all the facts which give the court jurisdiction, when the court in which the indictment is found, is a court of general criminal jurisdiction. *Turns v.*Commonwealth, 6 Met. 224. hi this case, as the indictment was in all respects good, before the amendments were allowed, and as their allowance did not prejudice the defendant on his trial, we see no reason for arresting the judgment.