
    Charles Covey vs. The State of Mississippi.
    A motion in arrest of judgment in a criminal case, is confined to defects apparent upon the face of the record itself, and which make the proceedings apparently erroneous ; and therefore no defect in evidence, or improper conduct on the trial can be urged under such a motion.
    Error from the circuit court of Warren county ; Hon. George Coalter, judge.
    The grand jury of Warren county, at the May term, 1846, preferred an indictment against Charles Covey, for stealing a horse of the value of fifty dollars. At the October term, 1846, the defendant was arraigned, pleaded not guilty, was tried and found guilty as charged in the indictment. On a subsequent day of the term, when the defendant was brought to the bar to have sentence passed upon him, his counsel entered a motion in ar-rest of judgment on the following grounds, to wit:
    “‘1st. Because the court, from inspection of the defendant, will find that he is a descendant from the African race, and therefore prima facie a slave.
    
      “2d. Because the indictment does not correctly describe the person of the defendant as a slave, or a free man of color, and is therefore defective.
    “ 3d. Because the court cannot pronounce the judgment of the law upon a slave.
    “ 4th. Because there was no evidence upon the trial rebutting the presumption of law that the defendant was a slave.”
    The motion was overruled‘by the court, to which the counsel of the defendant excepted. The defendant was then sentenced to two years imprisonment in the penitentiary, commencing on the 16th day of November, 1846. To reverse which judgment the defendant now prosecutes this writ of error.
    
      
      E. G. Walker, for plaintiff in error.
    1st. The plaintiff in error, from inspection of the court, is a descendant of the African race, and prima facie, a slave.
    2d. The descriptio personis is not set out in the indictment.
    All Africans or negroes are presumed to be slaves till the contrary appears. See Hudgins v. Wrights, 1 Henn. & Mun. 137, 141; Gregory v. Baugh, 2 Leigh, 696 ; 7 Ibid. 448, 451; Pollock on Slavery, 406, note and authorities there referred to.
    Who shall be deemed a mulatto. See H. & H. 137, sec. 12.
    Free negroes to be registered. See Hi & H. p. 168, sec. 51, 176, sec. 81.
    How free persons of color are to be tried. See H. & H. 737.
    
      John D. Freeman, attorney general for the state.
    Covey was indicted for horse-stealing; value of the horse fifty dollars, and was convicted. On the trial, it was proved that he had passed himself on the community for a free man of color. Prisoner excepted to this evidence, but the exception was overruled. It does not appear that any person claimed him as a slave. His own declarations on this subject, together with the fact that he was at large in the community, without the guardianship or restraint of any person, was evidence which he had no right to object to. The presumption of slavery, arising from color, was rebutted by his own declarations, and the absence of a master or owner. The profert of a colored skin was not sufficient to rebut this evidence, and hence he was properly sentenced to the penitentiary. Had he proved himself to be a slave, he would not have been the less guilty, but his presentment would have been different.
   Mr. Justice ThacheR

delivered the opinion of the court.

This was an indictment for larceny, preferred against Charles Covey by the grand jury of Warren county. The defendant below pleaded not guilty, and the jury found a verdict of guilty, as charged in the indictment. Upon being brought to the bar for sentence, the defendant pleaded in arrest of judgment, and assigned the following reasons, to wit, first, because the court, from inspection of the defendant, will find that he is a descendant from the African race, and therefore prima fade a slave; second, because the indictment does not correctly describe the person of the defendant as a slave or a free man of color, and is therefore defective; third, because the court cannot pronounce the judgment of the law upon a slave; fourth, because there was no evidence upon the trial, rebutting the presumption of law that the defendant was a slave.

A motion in arrest of judgment is confined to defects apparent upon the face of the record itself, and which make the proceedings apparently erroneous ; and therefore no defect’in evidence, or improper conduct on the trial can be urged under this motion. 1 Chit. C. L. 661; Barbour’s C. T. 330. The grounds upon which the motion in arrest of judgment in this case is made, have clearly reference to matters dehors the record, and even if the motion was improperly overruled upon their intrinsic merits, which is very questionable, it was rightly overruled upon the-genera] principles of law governing such motions.

Judgment affirmed.  