
    Sword vs. The State.
    1. In a case of misdemeanor where the allegations of the indictment necessarily involves a negative of the words of the statute creating the offence, the indictment is good. See Peek vs. The State, % Hum. 85; Budd vs. The State, 3 Hum. 483.
    
      2. Where a statute directs that a defendant on conviction shall be fined and imprisoned, and the circuit court on conviction fined the defendanty but failed to direct the imprisonment, the supreme court will, under the provisions of the act of 1809,ch. 49, order the imprisonment.
    Philip Sword was indicted, under the act of 1842, ch. 141, and convicted in the Circuit Court of Knox county, for selling a quart of whisky to a slave without permission from the master. He was fined fifty dollars by Scott, the presiding Judge. He appealed.
    
      W. Swan, for plaintiff in error.
    
      Attorney General, for the State.
   Turley, J.

delivered the opinion of the court.

This is an indictment against Philip Sword, under the act of 1842, ch. 141, for retailing spirituous liquor to a slave. The bill of indictment charges that he, Philip Sword, on the 7th day of April, 1848, in the county of Knox, unlawfully did vend and sell one quart of spirituous liquor called whisky to one Reuben, a negro slave, the property of Wm. Swan, without the said slave having a permit in writing from his master and owner so to do. To this bill of indictment, defendant pleaded not guilty. He was convicted upon his trial, moved in arrest of judgment, which was overruled, and thereupon he prosecuted an appeal to this court. And it is now contended, that the indictment is bad, in charging that the slave had no permission to buy; non constat, that the defendant had no permission to sell. This is a legal quibble which we cannot sustain. The words of the statute are: “without permission from his or her owner, master or mistress, or agent of the owner.” The obvious common sense meaning of the words is, that the slave shall have permission; ^nd this he will have, whether the permission be given to the slave himself or to the retailer; and if it be true, that the negro had no permission to buy, it is equally true the defendant had no permission to sell. We therefore affirm the judgment, overruling the motion in arrest of judgment: but inasmuch as the Circuit Judge has neglected in the judgment below to inflict the punishment prescribed by the statute, in not imprisoning the defendant, we correct the judgment in that particular, by giving such judgment as ought to have been given, and therefore direct that, in addition to the fine imposed, the defendant be imprisoned one week.  