
    Martin vs. State.
    1. In indictments for misdemeanors the same certainty of averment is not required as in indictment for felonies. Certainty to a common intent is all that is required in charging misdemeanors.
    2. In this indictment the defendant was charged with selling spirituous liquors to a slave, the property of A. Vaughn. Held that the description of the slave by ownership was sufficient without alleging the name of the slave.
    3. An indictment under the act of 1842, ch. 141, which charged that defendant sold spirituous liquor to a slave, the property of A. V., without the permission of A. V., is sufficient. If he sold it by permission of the agent of owner, it is matter of defence, which need not be negatived in the indictment.
    In 1829, (ch. 76,) the legislature declared by law that “any person who shall sell to any negro slave any spirituous liquors without a permit in writing from the master or mistress of such negro slave, shall be indictable, and upon conviction, shall be fined in a sum not less than five nor more than fifty dollars.”
    In 1842, (ch. 141,) it was enacted that, “no person shall sell any vinous, spirituous or fermented or intoxicating liquors in any quantity to any slave or slaves, without permission from his or her owner, master, mistress, or agent of the owner;” and the statute subjects the person offending against the' statute, to a fine and imprisonment not less than one week and not more than thirty days.
    
      Under these statutes at the July term of the Circuit Court for Montgomery county, in 1845, the Grand Jury indicted Ambrose Martin. The indictment alleged that “Ambrose Martin on the tenth day of July, 1845, in the county aforesaid, was guilty of selling spirituous liquors to a negro slave, the property of Abner Yaughn, without a permit in writing from his master, contrary,” &c. &c.
    On the plea of not guilty, the defendant was convicted.— The defendant moved the court in arrest of judgment. The presiding Judge, M. A. Martin, overruled the motion and sentenced the defendant to imprisonment for ten days and to pay the costs of the prosecution. Defendant appealed.
    
      Boyd and Shackleford, for plaintiff in error.
    They contended, 1st. That it must be charged that there was a sale to a slave, and to notify the defendant of the particular offence charged, it was necessary to state the slave or person to whom the liquor was sold. This was necessary for two reasons; first, to identify the offence of which the defendant should be acquitted or convicted, with a view to his future defence against a subsequent prosecution; and secondly, with a view to enable him to defend himself against the existing prosecution. Vaughn may have had many slaves, and the defendant might be prepared to prove his innocence if notified by the record of the charge intended to be established against him. They cited 1 Dev. and Bat. 199.
    They contended in the second place, that it was no offence to sell liquors to a slave except by virtue of the statutes of 1829, ch. 76, and 1842, ch. 141; that this was malum, prohibi-tum, and not malum in se; that therefore, the indictment should bring the defendant within the terms of the statute, and negative a permission by any one authorized by the statute to give such permission, viz, the master or agent of the owner or mistress.
    This was not done and they cited in support of this position 2 Yerger, 22,233.
    
      Attorney General, for the State.
   Turley, I.

delivered the opinion of the court.

Ambrose Martin was convicted. in the Circuit Court of Montgomery county, at the November term, 1845, of the offence of selling spirituous liquors to a slave without a written permission from the slave’s master so to do.

The. bill of indictment charges that “he was guilty of selling spirituous liquors to a slave, the property of Abner Yaughn, without a permit in writing from his master;” and it is now contended that this indictment is substantially defective for two reasons: 1st. That the description of the negro is not given with sufficient certainty; that he should have been described by name as well as by ownership. We do not think so. We have repeatedly decided that in indictments for misdemeanors, we will not require as great certainty as in indictments for felonies. Certainty to a common intent is sufficient. To hold that the name of the negro and the name of his master should be in every'instance specified in the indictment,' would be to require a degree of certainty destructive to prosecutions of this character. 2d. It-is contended that the indictment is bad because it does not aver that there was no written permission from the mistress or agent of the owner of the slave. We do not think so. The statute which creates the offence, makes a written permission from the master of the slave, ■ or from his mistress, or from the agent of the owner, a sufficient warrant to authorize the selling; that is, if the slave have a ¿raster, his written permission is required — if he have a mistress, her written permission is required — but if he be under the control of an overseer, his-written permission is required instead of that of his master or mistress. Therefore, when a negro is described as the property of a master or mistress and the execution of a written permission from either the one or the other as the case may be, is' negatived, it is good, for there may be no overseer or agent — in nine cases out of ten there would be none, and why negative that which may by bare possibility exist-, and which if it do, constitutes a defence fully within the knowledge of the accused, and of which he can readily avail himself?

Wé do not think that there is any thing inconsistent with this view of the case in the cases of the State vs. Jones, 2 Yerger, 22; and Mathews vs. the State, same book, 233, to which we have been referred as authorities. In both these averments of the existence of facts held to be necessary to constitute the offence charged, were omitted, but not so here. The averment is made, and as we have said, with sufficient certainty. The negro is described as the property of Abner Vaughn, and the existence of any written authority from him is expressly negatived. We will not intend that there might have been some one else authorized to give such permission.

The judgment will therefore be affirmed.  