Opinion
June Term, 1825.
When slaves are charged with a simple grand larceny at the common law, to give the Superior Courts jurisdiction it should be stated in the indictment that it is the second offense, because otherwise it is not punishable with death.
AT Spring Term last of WAYNE, before Badger, J., the prisoners, three negro slaves, were indicted by the grand jury for a simple grand larceny at common law in stealing a steer. The prisoners being put to the bar for their arraignment, and the indictment being read to them, it was stated and admitted by the solicitor that neither of the prisoners had before been admitted to the benefit of clergy, or been convicted of any felony.
The presiding judge being of opinion that the offense charged in the indictment was not within the act of Assembly giving the Superior Courts jurisdiction of offenses committed by slaves, as the punishment could not, upon conviction, extend to life, refused to put the prisoners to answer the charge, and ordered the indictment to be quashed. Whereupon Mr. Solicitor Miller, for the State, appealed to this Court.
It is only upon a second conviction of the offense stated in the indictment that the punishment of death is annexed to it; and it is consequently triable in the county court according to the act of 1793, ch. 381. The Superior Courts obtain jurisdiction under the act of 1816 only where the offense is so charged as to appear upon the face of the indictment to be punishable with death. It would be vain to try the prisoner first, and then to consider whether he was liable to punishment. This was settled in S. v. Adam, ante, 188. The court acted correctly in refusing to put the prisoners to answer (618) the charge.
PER CURIAM. Affirmed.