State v. Johnston, 51 N.C. 485, 6 Jones 485 (1859)

June 1859 · Supreme Court of North Carolina

51 N.C. 485, 6 Jones 485

THE STATE v. WILLIAM J. JOHNSTON.

Where the name of the owner of a slave was set forth in a bill o'f indictment against one for unlawfully trading with such slave, it was Held necessary to prove it as laid.

iNnicTMENT for unlawfully trading with a slave, tried before DiCK, J., at a special Term, (June, 1858,) of Northampton Superior Court. The indictment charged the defendant with unlawfully buying one peck of corn of a slave named Dick, the property of E. A. Jenkins. The proof, by one witness, was that the slave Dick belonged to an orphan girl named Urilla E. A. J. Jenkins; and, by another witness, that the owner’s name was Eosa E. A. J. Jenkins. The counsel for the defendant, took exception to this variance, and asked his Honor to instruct the jury that defendant was entitled to a verdict.— His Honor declined giving this instruction, but informed them that the variance was immaterial.

Yerdict for the State. Judgment and appeal.

Attorney General, for the State.

Goniglcond and Hardy, for the defendant.

Battle, J.

It was decided in the case of the Slate v. Robbins, 9 Ired. Rep. 356, that in an indictment under the statute for trading with a slave, it is unnecessary to set forth the name of the owner. The question is now presented, whether if the name of the owner be stated, it is necessary to prove it as laid. We are clearly of opinion that it is.

The name of the owner is a part of the description of the slave with whom the act of trading is alleged to have been committed. It may have been given to distinguish the slate from another of the same name, belonging to another person. If so, the proof must sustain the allegation, just as much as it would be necessary, in a case where the name of the owner was omitted, to prove that the trading was with a slave bearing the name stated in the indictment. It will readily be admitted that an indictment which charged the offense to have been committed with a slave named George, could not be sustained by proof that the defendant traded with a slave named Moses. The variance would be equally great if the slave were named as Moses the property of John Smith, and the proof was that the slave was named Moses, and that he was the property of Peter Smith. John Smith’s Moses and Peter Smith’s Moses, could no more be taken to be the same person than could George and Moses. If the difference between the name of the owner as charged, and as proved, were so small as not to alter the sound, it would be immaterial, and, therefore harmless, upon the doctrine of idem sonans, as we held in tlia State v. Houser, Busb. Rep. 410. In the case now before as, the utmost stretch of human ingenuity cannot make out that the name of E. A. Jenkins is the same either in sound, or in any other way with Urilla E. A. J. Jenkins, or Rosa E. A. J. Jenkins. The judgment must be reversed, and a venire de novo, awarded.

Per Curiam, Judgment reversed.