State v. Restiva

O’NIELL, J. (concurring in the result). The expression “with malice aforethought” has precisely the same meaning as “of his malice aforethought.” I do not find anything to the contrary in Marr’s Criminal Ju *685 risprudence, p. 55. The typographical error, or error in spelling, whichever it was, in the writing of the word “malice” “malace,” is not so serious that it cannot be cured by an application of the doctrine of idem so-nans. The defendant in this case, however, urged another cause for contesting the validity of the indictment; that is, that one of the jury commissioners had vacated the office by qualifying for a municipal office. The court ruled that the indictment was not invalid for that reason, but that it was invalid because its language was not correct. The state and the defendant both appealed. I cannot reconcile the ruling on the qualification of the jury commissioner .with the rulings of this court on the same subject in State v. Bain, 135 La. 776 , 66 South. 196 , and State v. Lewis, 135 La. 781 , 66 South. 199 . For that reason, I concur in the decree quashing the indictment.