¶1delivered the opinion of the court.
¶2This indictment is under the 38th section of the 2d article of" the act concerning crimes and punishments, (R. C. 1845,) and' is good and sufficient under that section. There is no necessity to aver malice aforethought. The indictment is not drawn under the 33d section, but under the 38th, and there is no pre-tence for supposing the indictment not good and sufficient. It would puzzle any criminal pleader to draw a better indictment under this 38th section.
¶3At this term of the court, we had another case before us-complaining of the insufficiency of the indictment under this-same section, (The State v. Bailey, ante,) and to the opinion: in that case we refer as decisive of this.
¶4It is to be regretted that the courts will still continue to> quash indictments, instead of trying and; punishing the guilty, and permitting the innocent to have the benefit of trial and acquittal. (See State v. Jennings, 9 Mo. 852. Carrico v. State, 11 Mo. 579. McGrath v. The State, 19 Mo. 678.) *492There being not the slightest grounds to quash this indictment, the judgment of the Circuit Court is reversed, and the cause remanded for further proceedings therein; .the other -judges concurring.