Opinion
(December Term, 1845.)
An indictment against a free person of color which charges that he did "buy of, traffic with, and receive from a certain negro slave, etc., one peck of corn," etc., is good, although the act making the offense of a free person of color dealing with a slave only uses the words "if he shall trade with any slave, either by buying of or selling to him," etc. The other words used in the indictment are mere surplusage.
APPEAL from PERSON Spring Term, 1839; Settle, J.
Attorney-General for the State.
No counsel for defendant.
Indictment against the defendant, a free negro, commenced in the county court of Granville, which charged "that he did buy of, traffic with, and receive from a certain negro slave, Lewis, the property of Fleming Beasley." Upon the trial it was proved that the defendant bought and received from the said slave, Lewis, a peck of corn. (83) It was also proved that the corn was the property of Fleming Beasley. The court charged the jury upon the evidence. The jury found the defendant guilty. A motion was then made in arrest of judgment, which was overruled, and the defendant appealed.
The defendant, a free man of color, was indicted for trading with a slave. The indictment charges that he, "on 11 February, 1837, in the county, etc., did buy of, traffic with, and receive from a certain negro slave named Lewis, the property of Fleming Beasley, etc., one peck of corn," etc. Under the charge of the presiding judge, the jury convicted the defendant. A motion was made to arrest the judgment, but for what cause is not set forth. We have carefully looked into the record, and can perceive no reason why the judgment of the law should not be pronounced upon the defendant. The indictment is preferred for a violation of section 5 of the act of 1826 which declares that "if any free negro or mulatto shall trade with any slave, either by buying of or selling to him," etc. The act forbidden, and made indictable, is sufficiently obvious. It is the trading of such persons with a slave; and the section contains two specifications of the offense, to wit, either buying of or selling to; either act is within the section, and constitutes an offense of a criminal nature. In this case the words "traffic with and receive from" are connected with the words "buy of." They are not found in section 5, but are in section 1 of the same act, and it is probable the pleader, who drew the indictment, was misled by not adverting to the fact that the first section extended to all citizens, and inflicted a pecuniary fine or penalty, and that the fifth was confined to a particular class of (84) individuals, and punished the offense in a different manner. The insertion of those words, however, does not vitiate the indictment; they are mere surplusage, for they may be stricken from the indictment, and still the description of the offense charged is full and complete. Utile, per inutile, non vitiatur. Thus, if an act punishable by the common law is charged in an indictment as contrary to a statute, and there be no such statute, the individual may be convicted and punished as at common law.
We see no error in the record, and the judgment below is
PER CURIAM. Affirmed.