¶1The grand jury, at a previous term of this court, having • found a bill of indictment against the defendant for the crime of murder, and the defendant having moved, on the affidavits of W. Henry Davis, George Moore and Carrie Moore, and the admissions of the district attorney as to the testimony given before the grand jury, and that the defendant and Carrie Moore were husband and wife at the time of the finding of the bill of indictment herein against defendant, and that the said Carrie Moore was sworn and gave material testimony before the grand jury.
¶2Now, after reading said affidavits and the testimony given before the grand jury, by which-it appears that Carrie Moore,, the wife of the said defendant, was sworn as a witness in behalf of the people against her said husband, before said grand jury, on the investigation of the charges against the defendant, whereon the indictment was found, and that said Carrie Moore, among other things, testified on such hearing before said grand jury, that said defendant, from time to time, between the 16th day of November, 1878, and the 8th day of December, 1878, whipped, misused and maltreated Emma Boberts, in a cruel and inhuman manner, and the *187question before said grand jury being whether or not the said defendant killed said Emma Roberts by said whipping, misuse and maltreatment, arid the said indictment having been in part based and founded upon such incompetent evidence, and after hearing W. Henry Davis, of counsel for the defendant, and Mr. Ashley, district attorney of Niagara county, in opposition thereto, it is
¶3Ordered and adjudged that said indictment be and the same hereby is quashed or set aside, and the prisoner remanded to await the action of another grand jury.