
    *Thomas v. The Commonwealth.
    
    November, 1830.
    (Absent Daniel and Lomax, J.)
    Criminal Law — Carrying Slaves Out of State. — T. carries the slaves of D. out of the state, without the owner's consent, with intent to deprive him of the slaves, until T. should receive a reward for apprehending and restoring them: Held, this is felony in T. under the statute, 1 Rev. Code, ch. Ill, § 30.
    Same — Same—Variance between Indictment and Record of Examining Court as to Name of Slaves — Effect. —Indictment against T. for carrying out of the state, four slaves, named Sandy, Henry, Poll and Hyatt the property of D. without his consent, and with intent to defraud and deprive him of the property; but the record of the examining court, shews he was examined, and committed, for so carrying away the three first named slaves, and another named Harriet, not Hyatt: Held, the indictment ought not to be quashed for this cause: and, the court instructing the jury, that the prisoner was not, under this indictment, to be convicted for carrying away Harriet or Hyatt, and the jury, with this instruction, convicting him: Held, further, this conviction is right.
    Thomas was indicted in the circuit court of Hampshire, under the statute, 1 Rev. Code, ch. Ill, $ 30, p. 428, whereby it is made felony for any person to carry any slave or slaves, not his own property, out of the commonwealth &c. without the consent of the owner, and with intention to defraud or deprive the owner of the property.
    The indictment charged Thomas, with carrying out of the county of Hampshire, and out of the commonwealth, into Maryland, five slaves, Henry, Sandy, Poll and Hyatt, the property of E. Dunn, and George, the property of E. I. Dunn, without consent of the owners, and with intention to defraud and deprive them thereof. The prisoner upon being set to the bar, moved the court to quash the indictment; the court overruled the motion; and the prisoner filed a bill of exceptions to the opinion.
    This bill of exceptions sets forth the record of the examining court, and stated the ground of the motion to be, that the examination was not for the same offence, that was charged in the indictment. Upon a comparison of the record of the examining court, with the indictment, it appeared that one of the slaves was called Harriet in the record, and *Hyatt in the indictment. And there was a statement added by the judge, that the name of Hyatt was by mistake inserted in the indictment instead of Harriet, and that upon the trial which afterwards took place, the court instructed the jury, that as to that slave it was not competent for them to find the prisoner guilty.
    Upon the trial, the prisoner moved the court to instruct the jury, that “if they believed from the evidence, that the prisoner carried the slaves out of the commonwealth with the intention of getting a reward, and not with the intention of depriving the owners thereof of said slaves, they must find the prisoner not guilty.” The court gave the instruction, but added thereto these words: “unless they should also believe from the testimony, that the prisoner did carry them out of the commonwealth, with the intention of depriving the owners of their said slaves until he should receive a reward for their apprehension.” And to this addition to the instruction the prisoner filed exceptions.
    The jury found the prisoner guilty, assessed a fine upon him, and ascertained the term of his imprisonment in the penitentiary to be three years; and the court passed sentence upon him accordingly. And now he applied to this court, by petition, for a writ of error to the judgment.
    
      
      Tke principal case is cited in Com. v. Adcock, 8 Gratt. 671.
    
   pij)R CURIAM

(unanimously)the writ of error was denied.  