This case involves the question whether the Superior Court have jurisdiction of the offence charged in the indictment, the solution of which .is unattended with difficulty, after looking at the several acts relative to the offence and the trial of slaves. The crime may be said to have been created by the act of 1741, which annexes to the first offence the punishment of loss of ears, and discretionary whipping, and to the second offence, death- The punishment and trial of this offence was transferred by the act of 1793 c. 381, to the County Courts, by the general description of all such offence, the punishment whereof extended to life, limb or member, which, at the same time, entitled the slave to the right of trial by Jury. The subsequent act of 1816, gave to the Superior Courts jurisdiction of all offences, the punishment whereof may extend to life, leaving still *189with the County Court the trial of all those where the punishment was confined to limb or member. Tims far, the subject is clear of doubt. But the act of 1816, sec. 4, enacts, that a slave convicted of a clergiable offence, shall be entitled to benefit of clergy, in like manner with a free man j a provision, which it is argued, denotes that the Superior Court jurisdiction embraced other cases than those where the punishment was death ; and that, by analogy, a case where the second conviction inferred the penalty of death, belongs, in like manner, to the Superior Court. That the punishment of this offence may extend to life, as much as the punishment of grand larceny, viz. upon the second conviction; and .that the punishment of the first offence, by the act of 1T41, being aggravated greatly beyond that of grand larceny, enlists every consideration of justice and policy on the side of sustaining the jurisdiction of the Superior Courts.
To this, the answer is, that grand larceny is a capital offence, and by the common law, is punishable with death j and it is only by the merciful extension of the benefit of clergy, by the modern statutes, that a person guilty of it is excused the pain of death. — (4 BL 2S9.) But it is still considered, in contemplation of law7, as punishable with death, and is always comprehended in the description of those crimes, the punishment whereof, may extend to life. The crime in the indictment, on the contrary, w7as originally, and from its first creation, punishable only by whipping and the loss of ears, and now7, by death on the second conviction, and, therefore, eannot be understood as one of those described in the act of 1816. It is, consequently, very plain, that the Superior Court has not original jurisdiction, and the judgment must he affirmed.
By the act of 1816, ch. 912, it is declared, that in all cases, in which a slave, or slaves, shall be charged with the commission of an offence, the puriish*190ment whereof may extend to life, the Superior Courts -^aw s^,a^ have exclusive jurisdiction.
In the present case, the punishment due$to the offence cjia,.gej jS) « cutting off both ears and public whipping,” and although it is death for committing a second offence of the same kind, in which case the Superior Courts would have jurisdiction, that consideration will not give thorn jurisdiction, in the first instance, against the express words of the act. I, therefore, think the judgment of the Court below ought to be affirmed.
The Superior Court has jurisdiction in the trial of slaves, in cases only affecting their lives — see act of 1816. But as the punishment of death is, by the act of 1741, to be inflicted, upon a conviction, for the second offence for which this slave is indicted, it, is argued, therefore, that the Superior Court has juris-dietion, as this may be the second offence; and it is likened to the cases of simple grand larceny, from which the benefit of clergy is not taken away by any statute ; and the case of the State v. Xsham, decided at the present Term, is cited to support the latter position.
The cases are by no means analagous. Grand Larceny is punishable with death by law. The benefit of Clergy averts the punishment; it does not change the law. JVbn cmistat, before it is demanded, which is always after conviction, that the Defendant will pray benefit of it, or will be entitled to it, for he is entitled to it but once ; and when demanded, it may be resisted on that or any other ground, by counter plea, ore tenus. The grounds of such resistance are never stated in the indictment, but where the sebond offence is more penal than the first, at least where it is a capital ^ffence, the first not being- so. Its being a second offence, constitutes it a part of the crime, and if so, it should be stated in the indictment. — The People v. Young, (1 Caine’s N. Y. Term R. 37.) At all events it should be so stated; *191when, its being the second, oift'ncc, gives jurisdiction to the Court; for I think it would be absurd to make the right of trying, dependant on a fact afterwards to be as-contained, and which therefore, may not be. The judgment below should be affirmed.