
    The State vs. Pleasant A. Brock.
    
      Trading with Slave — Indictment.
    A distiller, vendor, or retailer of spirituous liquors cannot be indicted under tbe Act of 1817 for trading with a slave, where the trading consisted of selling spirits to a slave. In such case he can only be indicted under the Act of 1834, for selling spirits to a slave.
    To charge one with purchasing ten cents in coin from a slave is no offence.
    BEFORE MUNRO, J., AT CHESTERFIELD, SPRING TERM, 1858.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    
      “ Tbe defendant was indicted jointly with bis father, Alsy Brock, for trading with Dick, tbe slave of B. E. Pegues. Tbe trading proved on the trial was tbe sale of a bottle of spirits to tbe slave, and for this same act tbe defendant was at this Term convicted on two other indictments of retailing, and of selling spirits to a slave. In these several indictments, tbe defendant is described as a “ retailer or vendor of spirituous liquors,” and was proved to be so. It was objected to a conviction in this case, that so far as trading with a slave by selling him spirituous liquors is concerned, tbe Act of Assembly, of 1834, in reference to distillers, retailers, and vendors of liquors, repealed tbe general Act of 1817, and tbe defendant cannot therefore by tbe one act of selling the bottle of spirits to tbe slave, Dick, be guilty of tbe two distinct offences, to wit, tbe general one of trading with a slave, prohibited by tbe Act of 1817, and tbe specific one of selling spirits to a slave, prohibited by tbe Act of 1834. Under the conviction that this identical question bad been made before tbe Court of Appeals, and there decided adversly to tbe defendant’s view, in a case wbicb was carried up from Williamsburg District a few years since, but bas not been reported, tbe objection was overruled, and tbe defendant was convicted.”
    Tbe defendant appealed and now moved tbis Court in arrest of judgment, on tbe grounds:
    1. That tbe defendant is indicted “as a vendor and retailer of spirituous liquors,” and on tbe trial of tbe case was proved so to be — and tbe act of trading proved is tbe selling a small quantity of spirits to tbe slave, Dick, and tbe Act of 1834, in so far as vendors and retailers of spirituous liquors are concerned, having repealed tbe Act of 1817, as to any species of trading prohibited by tbe first mentioned Act, tbe defendant for selling spirits to a slave is not liable to be indicted under tbe Act of 1817.
    2. That tbe defendant a shopkeeper, vendor and retailer of spirituous liquors, and so described in tbe several indictments, for the single act of selling spirits to the slave, Dick, was convicted in three several indictments : 1, for retailing; 2, for selling spirits to a slave; and 3, for trading with a slave; and tbis, it is submitted, is erroneous.
    3. That bis Honor ought to have instructed tbe jury, that for tbe same single act of selling tbe spirits to tbe slave, Dick, tbe defendant could not legally be guilty of two distinct offences, to wit, of trading with tbe slave generally, and of tbe specific trading of selling spirits to tbe slave.
    
      Inglis, for appellant.
    Tbe act of selling spirits to a slave, being clearly embraced within tbe general terms — “ deal, trade or traffic with any slave” — was an offence against the Act of 1817, and, as such, punishable -by a fine not exceeding one thousand dollars, and imprisonment of from one to twelve months. — 7 Stat. 454; State vs. Sonnerkalb, 2 N. & M. 280; 
      State vs. Mugy, cited in Holman’s case, 3 McO. 306. Wben tbe Act of 1834, (7 Stat. 469,) imposed, for this specific kind of trading, when done by “a distiller, vendor or retailer of spirituous liquors,” a smaller penalty that that provided by tbe former Act of 1817, the Act of 1834, as to- all cases of trading embraced within its provisions, and, among others, this of selling spirits to a slave, operated as a repeal of the Act of 1817. Every affirmative statute is a repeal by implication of a precedent affirmative statute, so far as it is contrary thereto. Leges posteriores, priores contrarias abrogant. 9 Bac. Abr. Tit. Stat. D. 226. When a statute imposes a new penalty for an offence, whether greater or smaller than the former penalty, it repeals, by implication, so much of the former law as establishes a different penalty. Smith’s commentaries, Sec. 776; Broom’s Leg. Max. 26, “Leges pos-teriores,” &c.; Bex vs. Gator, 4 Burr. 2026; Bex vs .Davis, Leach, 271, (228, 306?); Henderson, et al., vs. Sherburn, 2 M. & W. 236; Attorney-General vs. Lockwood, 9 lb. 391; Lang vs. Spicer, 1 lb. 129 ; Nichols vs. Squire, 5 Pick. 168; Commonwealth vs. Kimball, 21 Pick. 373. Stealing sheep or hogs was larceny, (grand or petit, according to the value,) at common law, and punishable accordingly. 4 Bl. Com. 236. The Act of Assembly of 1784, and, afterwards, of 1789, affirmed, that any person convicted of stealing a sheep, hog, &c., shall be subject to a fine of five pounds sterling for each sheep, &c., stolen, &c. There are no negative words — not even such as here, “ not exceeding,” — no words of express repeal. — May one who steals a sheep be indicted at common law, or under the statute, at the option of the State? Nay, worse ! May he be indicted and punished under both ? Is the new penalty added to the former ? as in the case before the Court ? The State never claimed more than an option, and was denied that. 'State vs. Bipley, 2 Brev. 300; State vs. McLain, lb. 443. It was a nuisance, at common law, to obstruct a navigable river, a public highway, but see State 
      vs. Thompson, 2 Strob. 12. Penal Statutes are to be construed strictly, a rule adopted, out of favor to tbe personal liberty of tbe citizen. So say English Judges — see Lord Abinger, in Henderson, and others, vs. Sherburn, 2 M. & W. 236. Tbe Act of 1834, expressly declares, that for tbe act of “ selling spirits to a slave,” “ a distiller, vendor, &c.,” shall be imprisoned not exceeding six months, and fined not exceeding one hundred dollars. Yet, by this magical interpretation of a system or series of penal legislation, all directed against the evil of trading with slaves — such “ distiller, vendor, &c.," for such single act of “ selling spirits, &c.,” may be inprisoned certainly eighteen months, and fined certainly eleven hundred dollars. And if, instead of selling the spirits for money, he had taken payment in corn, rice, cotton, &c., it is difficult to see what is to prevent the imprisonment being extended to thirty months, and the fine to twenty-one hundred dollars. See Act of Assembly, 1834, 6 Stat. 516; State vs. Priester, Che ves, 104. In this calculation, we do not include the punishment of the “ retailing,” which is involved in the act of selling a bottle of whiskey to the slave. This is an entirely distinct misdemeanor from that of “ trading with slaves,” assailing a distinct social interest, and violating a distinct public policy. On- this ground, the cases of the State vs. SonnerTcaTb, 2 N. & M. 280, and the State vs. Glasgow, Dud. 40, may perhaps securely rest. But selling spirits to a slave, differs from trading with a slave, only as the species differs from the genus — as the minor differs from its major in logic. So much for general doctrines. As to their application to the particular case of the statutes now under consideration, see the State vs. Hvrns, 3 Hill, 191; O’Neall, J., in the State vs. Stone, Rice, 148; Earle, J., in the State vs. Priester, Cheves, 104; Evans, J., in the State vs. Anderson 1 Strob. 459.
    
      Mclver, solicitor, contra.
   Cubia, per O’Neall, J.

Tbe case' of the State vs. Evans, 8 Hill 190, decided, that the Act of 1817, as to distillers, vendors or retailers, was repealed by the Act of 1834, in so far as they might give, deliver, sell or exchange spirituous liquors to a slave, without the written order of the owner, or person having the care and management of such slave. In that case, the defendant was not described in the indictment as either a distiller, vendor or retailer: the proof however showed that he was a “shopkeeper, and retailer and vendor of spirituous liquors,” and it was held by nine out of the ten Judges, that judgment could not be given against him under the Act of 1817 — that he was alone liable under the Act of 1834. Here in the second count the defendant with Alsey Brock is described as retailers and vendors of spirituous liquors, and is charged under the Act of 1817 — it is clear 'that he is not liable to judgment under it.

The first count charges what I think is no offence, the purchase of ten cents in coin from a slave. The money is the means whereby a trading for any “article whatever” may be consummated. But it cannot be said, that the shopkeeper, who delivers one pint of whiskey for ten cents, thereby becomes the purchaser of the ten cents in coin.

Let the judgment be arrested.

Wardlaw, WhitNER, Glover and MuNRO, JJ., concurred.

Motion granted.  