
    The State vs. T. J. S. Farr.
    
      ■Indictment — Appearance and Traverse — Abatement—Pleading —Misnomer—Trading with Slave — Evidence.
    Appearance and traverse to an indictment for a misdemeanor, operate not only as a postponement, but also as a plea of not guilty, and defendant cannot, at the next term, plead a misnomer in abatement.
    A plea in abatement for a misnomer of defendant, must be in writing, and verified by affidavit.
    An indictment for buying corn from a slave, alleged that defendant was a shop-keeper, and that the slave had no permit to sell. Held, on motion in arrest of judgment, that the indictment was good, under the Act of 181V or the Act of 1834 ; that it was immaterial under which defendant was convicted, the punishment under both being the same.
    A defendant may be convicted of buying corn from the slave of A. B., without direct proof of the ownership.
    The indictment charged a buying from Cuffy. Held, that it was sufficient to show a buying from Cuffee or Cuff.
    
    BEFORE WHITNER, J., AT BEAUFORT, SPRING TERM, 1858.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ The defendant, alleged to be a shop-keeper, and occupying a house in G-rahamville used for purposes, of trade, was indicted and convicted of buying corn from a slave.
    
      “ The bill was found November Term, 1857, and the defendant appeared by attorney and traversed in the usual form by an indorsement on the back of the record.
    
      “ At the present term he interposed an objection, ore tenus, by way of plea in abatement, because he had not been desig-. nated by his true Christian name. I thought the objection came too late, and the casts was submitted to the jury on its merits.
    
      “ The various grounds now taken in arrest of judgment require a copy of the indictment to be furnished the Court of Appeals, and perhaps, an inspection of the original bill. The form of the indictment which had been prepared before the present incumbent came into office, was not free from objections, but it remains to be seen whether after verdict it may not be sustained and judgment follow, 
    
    “ The jury was instructed, in conformity with general principles, that the offence should be set out in such way as that defendant might fully understand what be was called to answer, and that all material allegations must be sustained by satisfactory proof; that in this case the indictment had undertaken in the usual way to designate the slave by name, and as the “ slave of Joseph Gloverand amongst other things, they were directed to ascertain whether the proof sustained the allegations in these particulars. The slave was known by the name of Guffee, and sometimes called Guff. I thought the indictment might be read só as to meet the proof.
    “ The solicitor did not interrogate the witness in the usual way as to the ownership, and the omission was seized upon in the argument.- Joseph Glover, the prosecutor, was examined, and referred to some circumstances, though in a general way, (as a minute detail was objected to,) whereby, in consequence of certain discoveries in connection with the slave, he had been required to proceed with corn to this store or shop, between the hours of twelve and two o’clock at night, where the purchase was consummated.
    “ In all this, the jury were left to infer ownership, from the possession, direction and control, if in their judgment such inference was authorized, or perhaps to derive further aid from any form of expression or manner of statement by prosecutor as to the slave, as his hoy, or the like — as my notes of the evidence had not been carefully taken on that point. By some strange mistake, my remark that the allegation in the indictment of ownership was in conformity with approved form, has been confounded with an assertion that the allegations of ownership furnished evidence of the truth of the fact alleged — a blunder which could only have been equalled by an intelligent jury adopting it.”
    The defendant appealed, and now moved this Court to reverse his Honor’s ruling on the plea of abatement:
    Because it was sustainable, in that the initials T. J. S. are no name, and are not the name by wbicb defendant was known, which name was Tbomas J. S. Earr.
    Because his Honor erred, in ruling that tbe plea came too late, for tbe traverse is not a plea of not guilty, but only a motion of imparlance, and tbe appearance to indictment against T. J. S.. Earr is not tbe appearance of Tbomas J. S. Earr.
    And failing in that motion, then be moved in arrest of judgment:
    1. Because tbe indictment was framed under tbe A. A. 1817, as appears from tbe words “ not having a permit to sell tbe said corn from or under tbe band of tbe said Joseph Glover, or from or under tbe band of any other person having the care and management of tbe said slave;” and
    2. Because the State by marking in the margin “1817,” gave tbe defendant notice to defend a charge under that A. A., and not under tbe Act A., 1834.
    II. Because tbe indictment alleges that tbe slave who was traded with was tbe slave of Joseph Glover, and tbe State was bound to prove it. And bis Honor erred, in telling tbe jury they might presume it by putting together tbe two facts, that tbe State bad asserted it, and that Mr. Glover said be ordered tbe negro to go and trade with defendant.
    III. Because tbe proof was, defendant traded with a negro named Ouffee, while tbe indictment charged a trading with a negro with another name than Ouffee.
    IY. Because tbe indictment followed the words of tbe Act of 1817, and not tbe words of tbe Act of 1834.
    Screven, Fielding, for appellant.
    Owens, Solicitor, contra.
    
      
      
         The following is a copy of the indictment.
      THE STATE OF SOUTH CAROLINA, Beaueobt Disteict.
      „ .. . 1 '
      At a Court of General Sessions, begun and holden in and for the District of Beaufort, in the State of South Carolina, at Gillisonville, in the District and State aforesaid, on the first Monday after the fourth Monday of October, in the year of our Lord one thousand eight hundred and fifty seveni The jurors of and for the District of Beaufort aforesaid, in the State of South Carolina aforesaid, that is to say, upon their oaths, present, that T. J. S. Farr, a shop-keeper, having the use and occupation of a house in the village of Grahamville, used for dealing, trading and trafficking, and W. S. Wells, his clerk, on the twenty-fifth day of May,, in the year of our Lord one thousand eight hundred and fifty-seven, with force and arms, at Grahamville aforesaid, ih the District and State aforesaid, unlawfully did buy and purchase of and from a certain slave of Joseph Glover, named Cuffy, one bushel of corn, the said slave then and there not having a permit to sell the said corn from or under the hand of the said Joseph Glover, or from or under the hand of any other person having the care and management of the said slave, against the form of the Act of the General Assembly of the said State, in such case made and provided, and against the peace and dignify of the same State aforesaid.
      Bonham, Solicitor.
      
      True Bill — Ch. E. Leveeett, Foreman of Grand Jury.
      
      November, 1857.
      I appear for the defendant and traverse the indictment, November 3, 1857.
      T. E. SCBEVEN.
      We find the defendant, T. J. S. Farr, guilty.
      Jos. -,M. Lawton, Foreman.
      
    
   The opinion of the Court was delivered by

Clover, J.

After a plea of not guilty, a prisoner cannot avail himself of a misnomer, either on the trial or in arrest of judgment or on motion for a new trial. (State vs. Thompson, Cheves, 31.) But it is insisted that the entry on the indictment is not a general denial. Technically the term traverse means no more than turning over or putting off the trial to the succeeding term; but its meaning is often referred to the denying or taking issue upon an indictment. (State vs. Posey, 7 Rich. 484.) The more general and approved practice is to plead not guilty and to traverse. In oases on the criminal side of the Court, the accused has either found bail or is in custody. In misdemeanors, after the bill is found, if the defendant answers he must then plead, and an appearance and traverse is equivalent to a plea of not guilty and a postponement to the next term.

It is only necessary to add, in answer to the first and second grounds of appeal, that, up to the trial, no plea of misnomer verified by affidavit was filed.

It is argued in support of the grounds in arrest of judgment, that the defendant is indicted under the Act of 1817, (7 Stat. 454,) whereas, the trading charged is alone indictable under the Act of 1834, (6 Stat. 516). Both acts prohibit all persons, under the same penalty, from purchasing from any slave corn, &c. In the former Act, a ticket to deal, trade and traffic may be produced in justification of the act, whereas, in the latter the purchase of cotton, rice, Indian corn and wheat is forbidden with or without a permit. The Act of 1817, embraces all persons who buy or purchase any corn, peas, ricje, or other grain, &c., and certainly includes the defendant, who cannot complain that by its provisions, he may show the owner’s permit if he traded under its sanction. Beceiving is evidence of buying under either Act, and both prohibit buying from a slave by a clerk or any person acting for a shop-keeper. (State vs. Berhmann & Peters, 3 Hill, 90.) The words of this indictment do also sufficiently describe the offence under the Act of 1834. The allegation is, that the defendant purchased com from a slave .of Joseph Glover named Cuffee, which sets out g, substantive offence, and the additional words, “ not having a permit,” &c., under the last Act would be unnecessary and may be stricken out as surplusage, (2 Rus. on Grimes, 786; The State vs. Coppenburg, 2 Strob. 273.) The defendant is not taken by surprise, for no fact is admitted in evidence which is not alleged against him and the Court can pronounce upon the legal effect of the part which is established by the verdict of the jury, (4 Stark. Ev. 1550, 1565.) It is enough that so much is stated as is necessary to describe the offence created by the Act. Referring the verdict to either Act, we see no reason to arrest the judgment, and the penalty being the same in both, no embarrassment can be felt in pronouncing the sentence.

The cases relied upon in the argument to show that the two Acts of 1817 and 1834, create distinct offences, and impose different punishments, have been misapprehended by counsel by confounding two Acts passed in 1834. The one (7 Stat. 468,) relating to distillers, venders and retailers of spirituous liquors, and the other (6 Stat. 516), embracing shop-keepers and traders. The former and not the latter was referred to by the Court in the several cases of the State vs. Anderson, Evans, Thomas and Stone, (1 Strob. 459; 3 Hill, 191; 7 Rich. 481 and Rice 147). In the case of State vs. Evans, a new trial was ordered because on distillers, &c., the Act imposes penalties different in degree from the Act of 1817, and the Court could not determine under which the defendant was indicted and convicted. The indictment in this case is not drawn with that care which should be bestowed upon the records of this Court; but we are of opinion that it may be sustained under either Act.

We are satisfied with the instructions of the Circuit Judge respecting the ownership of the slave. It is alleged, that he was the slave of Joseph Glover, and the jury having so found, we will not order a new trial, as there was evidence sustaining their conclusion. It is also objected that the evidence proved the purchase to have been from a slave named Cuffee, whereas, the indictment charged that it was from a slave with a different name. If it cannot be read to meet the proof with certainty, it is an immaterial variance, and not greater than Anthron & Antrim, which was held to be certain to a common intent and sufficient. (The State vs. Scurry, 3 Rich. 68.)

Motion dismissed.

O’Neall, Wardlaw, Withers and Whitner, JJ., concurred.

Motion dismissed.  