
    'The State, vs. Thomas Wimberly.
    In indictments, it seems, neither clerical nor grammatical errors will vitiate, unless they change the word or obscure tire meaning.
    On an indictment, under the act of 1821, for killing a slave in miden heat and passion, charging it to have been don e feloniously, does not vitiate the indictment.
    The indictment in this case was in accordance with the precedents at common taw for manslaughter, and was held to be good.
    It is a general rule that the special manner of the whole fact should be set forth in the indictment with such certainty, that the offence may judij cially appear to the court; but precise phraseology need not he used, except when technical words are necessary in the description, to give character to the offence. It is sufficient if the idea is clearly and distinctly expressed.
    
      So, in indictments for murder or manslaughter, it is indispensably necessary to state that the death ensued in consequence of the act of the prisoner;
    This was an indictment for killing a slave in heat and passion.
    Tried before Judge Colcock.
    The indictment in this case was in the common form and contained two counts, for murder, and manslaughter at common law, omitting, however, the averment that the deceased died of the wounds inflicted. The prisoner was convicted on the second count in the indictment which was framed on the second clause of the act of the 20th December 1821 for killing a slave on sudden heat and passion. This count charged that the prisoner, “ in and upon a certain negro slave named Dick, the said Dick being the property of Barbara Holmes in the peace of God and of this State then and there being, feloniously and upon sudden heat and passion, did make an asault fee.” and after setting out the instrument with which the wounds were inflicted, tlieir nature and extent, in the usual way, concludes thus; to wit, “ of which said mortal wounds the aforesaid slave Dick then and there languished, and languishing did live, for the space of half an hour, and at the expiration of said half hour then and there died; and so the jurors aforesaid upon their oaths aforesaid do say that the said Henry Wimberly, the said slave Dick in manner and form aforesaid feloniously and upon sudden heat and passion did kill and slay against the form of the act of assembly &tc.”
    A motion was now made to arrest the judgment on the following grounds,
    1st. That the structure and averment of the count present the crime of manslaughter at common law and not the killing on sudden heat and passion under the act.
    2nd. Because the averment, that the deceased died of the wound, is omitted.
    Elli&son, contended that the indictment was wrong in stating the offence- as felonious. The legislature, by the act Intended to create a pew offence. The killing in heat and 
      
      passion was made a misdemeanor; and was not intended to bp subject to the principles of the common law. It is punished by a fine. Felonies at common law carry with them forfeit ture of goods. This is a statutory felony made so by the act; and the instrument must describe the offence specifically. (Crown. Cir. Comp. 105.) The indictment avers that he died at the expiration of the half hour, but not of the wounds, The charge must leave nothing for inference. (Ib. 105.J
    
      Elmore, solicitor contra,
    If there had been no legislation on the subject, it would be indictable at. common law. It is the killing of a reasonable creature and the act only changes the punishment. (see act of 1740.) No new offence was intended to be created, only a new punishment. Otherwise no case of manslaughter but killing in heat and passion, -would be punishable under the act. As to the second ground the plain construction of the indictment is, that he died of the mortal wounds.
    
      Ellison, in reply
    Slaves have no' personal rights. The act of 1740 adheres to the old forms, but does not make it manslaughter, which would he felony. To say he was in the peace of God and the state, was not applicable to the'condition of a slave. Before the act of 1740, defendant might Have been indicted at' common law. A slave is no body. He has no personal rights. If you apply the common law, in extenso, you must have express or implied malice. The word feloniously is not surplusage and therefore can not bo stricken out.
   Johnson, J.

In its general structure this indictment is in strict accordance with the precedents of indictments for manslaughter at common law, and the only objection raised to it in support of the first ground of the motion is, that the word feloniously is introduced, as giving a character to the offence not warranted by the act. It is not necessary for the present purpose to determine whether the offence is under the act a felony or not. If it be a felony, the word feloniously is indispensibly necessary; but admitting that it is only 3 4ibisdemeaSor, yet its introduction does not vitiate the indictment. The general rule is, that mere surplusage will not vitiate; as when an indictment for an offence at common law concludes contra formam staiuti. (1 Cowp. 683. 5 D. & East, 162.) And so, when in giving character to an offence, the word knowingly was unnecessarily introduced, it was held to be mere surplusage. (2 East, Crim. Law, 452.) If the offence set out in the indictment be indeed a mere misdemeanor, it is difficult to conceive of a term more foreign to it than that of feloniously. It is a character which, when applied to the subject matter, is wholly unmeaning, and falls clearly within the rule.

As to the second ground, it is a general rule that the ■Special manner of the whole facts should be set forth in the indictment with such certainty that the offence may judicially appear to the court. And in its application it is clear that in indictments for murder or manslaughter, it is indispensably necessary to state that the death ensued in consequence of the act of the prisoner. But I apprehend that the pleader is not confined to any precise phraseology, except when technical words are necessary in the description to give ■character to the offence. It is sufficient if the idea is clearly and distinctly expressed; for neither clerical nor grammatical errors will vitiate, unless they change the word or obscure the meaning. (5 D. and E. 317-8.) And as more directly applicable to the present question, it is laid down in 4 Harg. State Trials, 747, (cited in 1 Chitty's Crim. Law, 173,). that it is not necessary to repeat the nominative case to all the allegations in one continuing sentence. If the sentence objected to in this indictment be read by supplying the nominative case before each verb, as authorized by the rule, it would read thus: — “ Of which said mortal wounds the said slave Pick then and there languished; of which said mortal woundst he, languishingly, did live,' for the space of half an hour, and at the expiration of the said half hour, of the said mortal wounds then and there died:” So that the idea is clearly and distinctly expressed, and the grammatical con* struction of the sentence preserved.

Motion refused.

Ellison for the motion.

Elmore, solicitor, contra.  