
    
      The State vs. Benjamin Clements—Indictment for Bastardy.
    
    It is necessary, in an indictment for bastardy, to charge that the mother of the bastard child is a white woman.
    
      Before Evans, J., Darlington, Fall Term, 1842.
    The defendant was convicted, and now moved the Court of Appeals in arrest of judgment, on the following grounds:
    1. Because the indictment does not charge that Hester Dowling, the mother of the bastard child, was a white woman.
    2. That the indictment is, in other respects, informal and insufficient.
    The above grounds relate entirely to defects supposed to exist in the indictment, and require no report of the evidence.
    Dargan, for the motion,
    cited 2 Brevard, 386; 2 Nott & M’Cord, 365 ; 1 Chitty’s Criminal Law, 172, 284, 169 ; 3 M’Cord, 442; 3 ib. 553; 2 Baily, 17; 1 Baily, 144.
    M’Iver, Solicitor, contra,
    contended that the allegation in the indictment, that the child was, by the laws of the State, a bastard, cured the defect. All the preliminary objections to the issue of paternity are to be settled before the magistrate. It is unnecessary to describe the defendant as a free white person. Cited 3 Hill, 61; 1 M’Mullan, 275; Acts of 1839, 26 p.
   Curia, per

Evans, J.

If the question here presented were a new case, it might be doubtful, since the decision of the State vs. Schroder, 3 Hill, 62, whether it be necessary to allege that the mother of the bastard was a white woman. But the same question was made and decided expressly, in the case of the State vs. Clark, 2 Brevard, 386, and we think it better to let a decision stand, although its correctness may be somewhat doubtful. It is easy to conform, and departures from adjudicated cases might lead to great uncertainties in the law.

Richardson, O’Neall, Butler and Wardlaw, JJ. concurred. Earle, J., dissented.  