
    Peter Young v. The Commonwealth.
    Criminal Law — Statute—Free Persons — Indictments— Allegation. — In prosecutions under Statutes, which declare that persons “being free,” shall be punished in a particular manner, different from that prescribed for slaves, it is unnecessary to charge in the Indictment the prisoner as being free: for the description of the person in such cases, does not enter into, nor make part of the offence.
    This was a petition for a Writ of Error to a judgment of the Superior Court of Eaw for Franklin county. - The Indictment contained two Counts, the first of which charged the prisoner vvith an unlawful and felonious stabbing, and *the second with a voluntary, malicious, and felonious stabbing. The prisoner being arraigned, moved the Court to quash the first Count in the Indictment, on the ground that he had not been examined by the Examining Courts for the offence of unlawful stabbing, and also because he was not charged in the said Countas being a “free” man. The record of the Examining Court, (being made a part of the Bill of Exceptions,) shews that the prisoner was examined, and remanded for trial, for the offence of felonious, voluntary, and malicious stabbing. The motion was overruled, and the prisoner being tried, was found guilty under the first Count, of unlawful stabbing, and acquitted under the second, of malicious stabbing.
    He now applied to this Court for a Writ of Error to the judgment rendered on the said verdict. The first error assigned by the prisoner for quashing the Count, was abandoned by his Counsel, nor was it thought to be of any importance by the Court. The second ground was here relied on by him, but was over-ruled by the Court.
    
      
      The principal case is cited in foot-note to Bennett v. Com., 2Va. Cas. 235. See monoeraplaic note on “ Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
   WHITE, J.,

delivered the opinion of the Court :

The petitioner was indicted, tried, and sentenced to undergo a confinement in the Penitentiary, for feloniously stabbing a certain Eittleburg, Young. The section under which this conviction took place, says, “Whosoever shall unlawfully stab, &c. with intention to maitnj disfigure, disable or kill, &c. every such offender, being free,” is declared to be guilty of felony, &c. The Indictment in this Case does not aver, or set forth in any way, that the said Peter Young is free, and the Writ of Error is applied for on account of this supposed defect.

Several authorities, have been introduced to shew that where any description of this kind is contained in the enacting clause which creates an offence, that it is error to omit that description. But, a little consideration of those cases will discover that the doctrine applies only to those cases where the description enters into and makes a part of the crime, or is necessary to complete it. Thus, a late Act of Assembly makes it felony for certain officers to embezzle certain monies which may come-to their possession. Here *the office is of the very essence of the crime, without which the offence would remain, as at Common Law, a mere, breach of trust. An Indictment, therefore, under that Act, must shew that the accused held an office which would bring him within the Act. But, in this case, the words omitted does not enter into the offence, nor constitute any part of it; for, whether the party be bond or free, it is equally a felony. The word “free,” is introduced merely to shew the Court in which he is to be tried, and the mode of punishment. It does not, even in those respects, introduce any. new principles, but only refers to such’as -Were already established.

This question has been already settled by this Court, at a former Term, in the Case of Bennett v. The Commonwealth, ante, p. 235. 
      
       See 1 Chitty’s Or. Law, 190, 283,286; also, Hawk. Book 2, ch. 25, § 111, 112; and Rex v. Robert Palmer, 1 Leacb, 102!
     