Conner vs. The State,

the day be laid subsequent to the finding of the grand jury; it is the same in effect as stating an impossible day, as the fortieth of May, and if it be correct that any day within the statute of limitations and before indictment found will suffice, it is quite clear that no day, or one that is impossible, will do just as well. But we fall back upon the position that this and all kindred objections came too late.

[3.] As to the objection, that the panel of jurors, were summoned partly by bailiffs, the record discloses no facts touching this point except what appears in the motion for a new trial, which was disallowed by the Court. It is true that the law requires that jurors shall be summoned by the Sheriff or his deputy; and if the Sheriff be interested then by the coroner or some other person appointed by the Court. If the bailiffs in this case acted, under the authority of the Sheriff, they were his deputies pro hac vice.

[4th.] If the witness, Jumes T. Holeman was unable from his physical condition to speak loud enough to be heard by the Court and jury, there can be no reason why his answers should not be communicated by Col. Dudley, an attorney of the Court, in the presence and hearing of the witness.

[5.] The Court charged the jury that if they believed from the evidence the defendant took and carried away the negro, Seaborn, the property of Markett, from the 26th Court Ground, or any other place in Sumter county, with intent to steal said negro, the defendant is guilty, that it made no difference whether others aided and assisted or not, if the defendant actually perpetrated the theft; that if Holeman and Phillips, both be guilty, that does not help this defendant.

It is objected to this charge, that it is inapplicable to the the case, and calculated to mislead the jury. The point taken by the prisoner being, that if the jury believe the crime to have been committed and completed by others before the property was received by the prisoner, then he was only an accessory.

We have examined the testimony carefully and think the

Conner vs. The State.

Court was fully justified in giving the charge which it did: The counsel for the accused had the right to insist upon his view of the law as applicable to the evidence. And for any thing that appears he was permitted to do so. All he complains of is, that the proposition laid down by the Court, the soundness of which is not and cannot be controverted, was calculated to withdraw the mind of the jury from the defence which he set up for the protection of his client. To my mind it is clear that both positions can stand together. The crime may have been completed as to Holeman and Phillips when they carried off the negro, from the custody of his owner, and still Conner have been a principal. If his account of the transaction can be relied on, such was the truth of this case. Be this as it may, the Court charged nothing that was not law; and law, too, applicable to the facts proven.

If the confessions of the defendant be true, he not only stole the negro, but afterwards drowned him. He is not only guilty of larceny, but of murder also.

Judgment affirmed.

BENNING J. Concurring.

Abner Conner was indicted for simple larceny in stealing a negro, and was found guilty. The indictment was founded on a presentment. After verdict a mofion was made by him in arrest of judgment. This motion was put on two grounds; 1st, that the presentment "charged the offence to have been committed on a day subsequent to the finding of the grand jury." 2d," that the bill of indictment charges the offence to have been committed on a different day from that alleged in the special presentment."

The Court overruled the motion,

I think the Court did right.

[1] The allegation of time in indictments is, in general, immaterial. The time when an offence is committed cannot, in general, be a matter affecting the real merits of the

Conner vs. The State.

offence; "and no motion in arrest of judgment shall be sustained for any matter not affecting the real merits of the offence charged in such indictment." 2 Sec. 14 Div. Pen. Code.

This motion having been overruled, Conner moved for a new trial, which motion was also overruled.

The first ground of the latter motion was, that" the Court after objection by the prisoner, refused to set aside the array of jurors on the ground that the array was summoned partly by bailiffs."

[2.] It is to be presumed, that these bailiffs acted at the instance of the Sheriff; that is, that they were his special deputies. "And the said Sheriffs" "shall have power," "to appoint, as there shall be occasion, one or more deputies." 46, Sec., Jud. Act of 1799.

I think that there was nothing in this ground.

The second ground was, that the presentment "was not presented to the jury on the demand of the prisoner, the same being made after the jury was empannelled."

Of what service could the presentment have been to the jury? The variance between the presentment and the indictment as to the time, was not a matter to acquit on. The finding ought not to have been affected by the presentment, if the jury had seen the presentment.

I see nothing then in this ground.

The third ground was, that" the Court permitted testimony to be given to the jury, after objection by the prisoner, the the jury having been empannelled upon the bill of indictment without the the special presentment."

[3.] I think, that empannelling the jury upon the indictment was quite sufficient; I do not know of any law requiring the empannelling to be, on both the indictment and the presentment, in cases founded on presentment.

The fourth ground was, " that the Court refused to hear testimony to show that the prisoner was arraigned on the special presentment, and not on the bill of indictment; and

Conner vs. The State.

Court was fully justified in giving the charge which it did: The counsel for the accused had the right to insist upon his view of the law as applicable to the evidence. And for any thing that appears he was permitted to do so. All he complains of is, that the proposition laid down by the Court, the soundness of which is not and cannot be controverted, was calculated to withdraw the mind of the jury from the defence which he set up for the protection of his client. To my mind it is clear that both positions can stand together. The crime may have been completed as to Holeman and Phillips when they carried off the negro, from the custody of his owner, and still Conner have been a principal. If his account of the transaction can be relied on, such was the truth of this case. Be this as it may, the Court charged nothing that was not law; and law, too, applicable to the facts proven.

If the confessions of the defendant be true, he not only stole the negro, but afterwards drowned him. He is not only guilty of larceny, but of murder also.

Judgment affirmed.

BENNING J. concurring.

Abner Conner was indicted for simple larceny in stealing a negro, and was found guilty. The indictment was founded on a presentment. After verdict a mofion was made by him in arrest of judgment. This motion was put on two grounds; 1st, that the presentment "charged the offence to have been committed on a day subsequent to the finding of the grand jury." 2d," that the bill of indictment charges the offence to have been committed on a different day from that alleged in the special presentment."

The Court overruled the motion,

I think the Court did right.

[1] The allegation of time in indictments is, in general, immaterial. The time when an offence is committed cannot, in general, be a matter affecting the real merits of the

Conner vs. The State.

offence; "and no motion in arrest of judgment shall be sustained for any matter not affecting the real merits of the of fence charged in such indictment." 2 Sec. 14 Div. Pen. Code.

This motion having been overruled, Conner moved for a new trial, which motion was also overruled.

The first ground of the latter motion was, that" the Court after objection by the prisoner, refused to set aside the array of jurors on the ground that the array was summoned partly by bailiffs."

[2.] It is to be presumed, that these bailiffs acted at the instance of the Sheriff; that is, that they were his special deputies. "And the said Sheriffs" "shall have power," "to appoint, as there shall be occasion, one or more deputies." 46, Sec., Jud. Act of 1799.

I think that there was nothing in this ground.

The second ground was, that the presentment "was not presented to the jury on the demand of the prisoner, the same being made after the jury was empannelled."

Of what service could the presentment have been to the jury? The variance between the presentment and the indictment as to the time, was not a matter to acquit on. The finding ought not to have been affected by the presentment, if the jury had seen the presentment.

I see nothing then in this ground.

The third ground was, that" the Court permitted testimony to be given to the jury, after objection by the prisoner, the the jury having been empannelled upon the bill of indictment without the the special presentment."

[3.] I think, that empannelling the jury upon the indictment was quite sufficient; I do not know of any law requiring the empannelling to be, on both the indictment and the presentment, in cases founded on presentment.

The fourth ground was, "that the Court refused to hear testimony to show that the prisoner was arraigned on the special presentment, and not on the bill of indictment; and