
    State vs. Jones, and others.
    
    If indictment founded on a statute, be so drawn that all the facts stated in it may be true — and yet the defendant be innocent— he cannot be punished.
    An indictment founded on the act of 1806, ch. 32, for harboring a slave, must aver that the harboring was without the consent of the owner, 
    
    Judgment cannot be given for a corporal punishment against one who is absent — contra, where the judgment is merely a fine.
    This was an indictment for harboring a slave, and is founded upon the act of 180G, ch. 32, sec. 4. The indictment states time and place with sufficient certainty, and charges of the offence — that they (the defendants), “one negro man slave for life the property of John Kennedy, and who was then runaway from his master’s service, did harbor and maintain, contrary to the act of Assembly, &c.”
    The defendants were tried in the circuit court of Greene county, and were found guilty by the jury. Judgment was rendered on the finding in the absence of the defendant, and the cause removed to this court by writ of error.
    The fourth section of the act of 1806, ch. 32, is in the following words: “If any white person, free negro, or mulatto, shall harbor or maintain any slave without the consent of his or her owner, such person being thereof convicted, shall forfeit and paj, a sum not exceeding twenty dollars, nor less than ten for every such offence, to be applied to the use of the poor of the county in such conviction took place.”
    
      
       When the enacting clause of a statute contains an exception, it must be negatived in the indictment or declaration, Speers vs. Parker, 1 D. and E. 141. 1 East P. C. 167. Rex vs. Doris, 3 Bar. and Alderson 596. Vevasa vs. Ormond, 6 B. and Cres. 432. Commonwealth vs. Maxwell, 2 Pick. Rep. 139. Smith vs. Moore, 6 Greenleaf’s Rep. 274. But if the exception or proviso is in a substantive and distinct clause of the statute, it is matter of defence, and need not be negatived. Rex vs. Matters, 1 Bar. and Al. 362. Steel vs. Smith, Ib. 94. Arch. Cr. Pl. 25. Teel vs. Fonda, 4 John. Rep. 304. By “enacting clause,” is meant, where the exception is so incorporated with the enacting clause, that the one cannot be read without the other—Steel vs. Smith, 1 Bar. and Al. 94. Jones vs. Axon, 1 Ld. Raymond 120. 4 John. Rep. 304.
    
   Opinion of the court delivered by

Judge Haywood.—

Upon this record one question is, -whether this is a bad indictment, for not having inserted in it, that the harboring was “without the consent of the owner.” And we are all of opinion, that the omission of this averment is fatal. If the indictment be so drawn, that all the facts stated in it may he true, and yet the defendant he innocent, he cannot be punished. In this case although every word of the indictment must be taken to he true, yet it cannot be seen that the defendant is guilty of any offence; for the harboring may have been with the consent of the owner,and must be so taken in favor ofinnocence, where it is not negatived in the indictment. The law is correctly laid down in 1 Chitty’s Cr. Law 233, which cites 2 Hale’s Pleas Cr. 170. Foster 430. 1 East’s Rep. 441.

Another question is, whether judgment can be given in the absence of the defendant. The law is law down in Duke’s case 1 Salkeld 400, where it is said, that judgment cannot be given for a corporal punishment against one who is absent, though judgment for a fine may. See Queen vs. Templeman, 1 Salk., 56. Judgment reversed.  