
    
      The State vs. Lewis Stein.
    
    An indictment, under the Act of ’21, for harboring a slave, is not barred, because a civil action for the same offence was first commenced, and is pending at the trial of the indictment.
    Under the Act the defendant may be proceeded against criminally and civilly, at the same time, but the prosecutor will be put to his election which case to try; or the trial of one case may be pleaded in bar of the other.
    
      BSfore Wardlaw, J. at Charleston, Spring Term, 1844.
    This was an indictment under the Act of 1821, 7 'Stat. 460, for harboring a runaway slave. Before the warrant for the defendant’s arrest had issued, the prosecutor had commenced a civil action against the defendant for the same offence, which action was still pending. The defendant ■ contended that the civil action was a bar to the indictment. His Honor ruled otherwise, and a verdict of guilty was rendered. The defendant appealed.
    
      'Yeadon 6p McBeth, for the motion.
    
      Bailey, Attorney General, contra.
   Curia, per Evans, J.

We are to decide whether the bringing a civil action, by issuing a writ, was a bar to a subsequent proceeding by indictment. The object of the Act seems to have been that the offender should not be punished both criminally and civilly for the same matter, which might have been done before the passage of the Act. But it is not inconsistent with this object that the preliminary proceedings in both may exist at the same time, nor do I perceive that the benefit intended to be secured to the defendant is in any way impaired, if the prosecutor, at the time of the trial, is put to his election, on which he will proceed; or if this is not done, by allowing the defendant to plead the trial of one case in bar of the other, which seems to be in analogy to other cases of election ; State vs. Blyth, 1 Bay, 166 ; 1 Bay, 501. This question does not seem to have arisen before. The only reported case is Johnson vs. Lemons, 2 Bailey, 392 ; but that decides nothing as to the time when the prosecutor should be put to his election.

The motion is dismissed.

Richardson, O’Neall, Butler, Wardlaw and Frost, JJ. concurred.  