
    The State vs. William D. Rollins.
    
      Indictment — Selling Spirits to Slave — Trading with Slave.
    
    Where a vendor or retailer of spirituous liquors is convicted under the Act of 1834, for selling spirits to a slave, he cannot, for the same offence, be again convicted under the Act of 1817, for trading with a slave.
    BEFORE GLOVER, J., AT DARLINGTON, SPRING TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “ The defendant, a shop-keeper, was indicted under the Act of 1817, for trading with a slave without a permit. The proof was, that the slave went into defendant’s shop with five pounds of bacon and an empty bottle, and came out without the bacon and with a bottle of whiskey. The slave said he had five pounds of bacon, and would have brought more if he had known that the defendant would have taken it, who replied, you might have brought five, ten, fifteen, twenty or fifty pounds, and I would have taken it.
    “At this term the defendant had been before convicted, under the Act of 1884, as a vendor and retailer of spirituous liquors, on the same evidence, except that in the case of trading, John Tolson, the only witness examined, said he was a shop-keeper, and in the case of retailing, Richard Carter said, he had a shop with liquor in it, and he had seen persons drinking there. The defendant pleaded the former conviction in bar, which was held bad, although both offences arose from the same acts of trading, and the defendant was convicted.”
    The defendant appealed and now moved this Court to arrest the judgment, because the indictment in one count charges unlawfully trading with the slave, in the purchase of five pounds of bacon ; and in the second count, that defendant (who was proved on the trial to be a vendor of spirituous liquors) did deal, trade and traffic with the slave, by selling one quart of whiskey in exchange for five pounds of bacon.
    The defendant pleaded “ autrefois convict,” and offered a record of conviction at same term, on indictment charging him, as a vendor and retailer of spirituous liquors, with selling the same negro one quart of whiskey, the transaction being the same under both indictments.
    The defendant submitted that the verdict being general, and the punishment for conviction under the two counts being different, it cannot be determined to what count the verdict is to be referred, and the judgment should be arrested.
    Failing in this motion, then the defendant moved for a new trial, because his Honor should have instructed the jury, that his plea of “ autrefois convict” was a bar to the said indictment.
    Norwood, for appellant,
    
      cited State vs. Montague, 2 McC. 257; State vs. Schroder, Eiley’s Cases, 65; State vs. Brock, 11 Eich. 447; 1 Bl. 88; Bish. sect. 114.
    
      Mclver, Solicitor, contra.
   Tlie opinion of the Court was delivered by

Whitner, J.

The Acts of 1834 and 1817, each prohibit the sale of spirituous liquors to a slave, without a lawful permit by persons enumerated, though under different penalties. The distiller, vendor, and retailer, fall within each, and quoad such persons, the penalty enacted for that specific offence by the Act of 1834, is a repeal of the" penalty •prescribed by the Act of 1817. Under the authority of the cases of State vs. Evans, 3 Hill, 190, and State vs. Brock, 11 Rich. 447, the judgment in this case must be arrested, the defendant having been convicted under the Act of 1834, in a former case, and incurred its penalty.

The motion in arrest of judgment is granted.

O’Neall, Wardlaw, Withers, Glover and Munro, JJ., concurred.

Motion granted.  