This is an indictment under R. S. 1871, c. 51, § 36. After verdict of guilty a motion in arrest of judgment was filed, ‘ because said indictment contains no averment what heirs the party killed left, nor their names.’

In the first count the averment is, ‘then and there having a lawful wife and child alive.’ As a dead man cannot with much pro*151priety be said to have a lawful wife, it may be inferred that this allegation refers to his condition before death and leaves it uncertain whether that wife became a widow or otherwise. In the second count the averment is, ‘ that there is now living a widow and one child,’ etc. This must refer to the time of finding the indictment, leaving it uncertain what other children might have been left at the time the man was killed. Neither of these allegations is such distinct, unequivocal statements, as the statute contemplates and criminal or civil pleading requires. Commonwealth v. Eastern Railroad, 5 Gray, 474.

But a more serious defect in the indictment is the omission of the names of those persons who are to receive the forfeiture.

By the provisions of the statute, the forfeiture recovered is wholly to the use of the widow or children or heirs, and no part of it to the State.. If there is a conviction the judgment must follow the indictment.

As the case now stands no valid judgment can be rendered. No fines can be imposed to the use of the State because the statute does not authorize it. Nor for the use of those for whose benefit it was intended, because they' are not named upon the record, nor is it even alleged that it is to be appropriated to the use of any persons other than the State. A judgment giving the penalty to the widow and child of the deceased person, or to his heirs, would be too indefinite and uncertain, to be of any force or effect. In cases where the form of the process necessarily indicates the person who is to receive this penalty, or where the law makes a special appropriation of it to a particular individual or to a corporate body of which the court can take judicial notice, a formal averment of the appropriation of the penalty may be unnecessary. State v. Cottle, 15 Maine, 473; Commonwealth v. Messenger, 4 Mass. 462.

But when those persons for whose benefit the forfeiture is incurred, are not made certain by the process, or by the law without the introduction of testimony; in other words, when there may be an issue of fact in relation to them, there must be a formal aver*152ment in the indictment setting out the names. In the case of Commonwealth v. Messenger, above cited, Parsons, C. J., says: ‘The exception which has most weight is, that the complainant neither shows on whose behalf he complains, nor what the defendant has forfeited by his offense, nor consequently how the statute has appropriated the forfeiture. To an information qui tam at common law this exception would be fatal.’ If fatal to an information, it would be no less so to an indictment.

In Commonwealth v. Frost, 5 Mass. 53, an. objection was made to the competency of a witness, because the statute gave him ‘ one moiety ’ of the penalty, and he was therefore interested in the result. But this objection was overruled on the ground, as stated by Parker, J., in the opinion of the court, page 58, that ‘ to entitle Clough to receive one moiety of this penalty, it should appear on the record that he prosecuted, complained, or sued for.it. . . . Whether he'complained or informed does not appear to the court, there being no record of any complaint or information ; nor is it alleged in the indictment that any person other than the government is interested in the penalty; so that the court are not authorized to award any part of the penalty to Clough, nor has he any means of obtaining if.’

In Commonwealth v. Howard, 13 Mass. 221, the judgment awarded one-third of the penalty to one Chase as informer, though he was not named in the information. The court held the judgment erroneous on that ground.

We have been referred to no case nor have we been able to find any, where the penalty, or any portion of it, has been awarded to a person not named in the process as entitled to receive it, except such cases as are before noticed, where the law itself makes an appropriation such as the court can take judicial cognizance of. To do so would be contrary to all analogy in legal proceedings, both civil and criminal.

But it is said in the argument ‘that tvhen a name is to the jurors unknown, it is sufficient for them to say so.’ This is undoubtedly true as to all persons ‘ whose existence is legally essential to the *153charge.’ This is allowed from the necessity of the case as a matter of public policy. But this does not apply to persons who for special reasons are allowed to receive all or a portion of the penalty, and whose existence is not essential to the charge. There is no pressing necessity in such case. By giving the whole of the penalty to individuals, the legislature has made the prosecution as much a private matter as a public one. If those who are to receive the penalty make no claim to it, none can be enforced. If they do claim it, it is quite as easy for them to make known their names as their right. In public prosecutions where the penalty goes to the State the judgment is in favor of the State, where it goes to an individual the judgment must be in favor of that individual; but no judgment can be rendered in favor of an unknown person.

The case of Commonwealth v. Boston & Worcester Railroad Corporation, 11 Cush. 517, is founded upon the true distinction. It is there held that it is not necessary to set out the names of the heirs of the person killed. Under the statute upon which that decision rests the existence of heirs is essential to the charge, but the forfeiture is payable to the administrator. In that indictment the name of the administrator is given, and the court held that sufficient. In the opinion it is said, ‘ This indictment does name the administrator of the estate of the deceased, and, therefore, makes certain the party to whom the fine is to be paid when received by the Commonwealth.

Under our statute the forfeiture is to be paid directly to the heirs. The result is that as persons necessary to sustain the charge, the heirs, if unknown, need not be named; but as persons for whose benefit the forfeiture is incurred and to whom it is to be paid, there must be a formal averment in the indictment setting out these facts and giving their names.

Exceptions to overruling the motion in arrest of judgment sustained. Judgment arrested.