
    State vs. Brown.
    1. Every fact stated in an indictment which is not a necessary ingredient in the offence may he rejected as surplusage and need not he proved: Therefore where an indictment under the act of 1831, ch. 113, charged that an assemblage of slaves was knowingly permitted by the defendant on his premises without" the consent of the owners both in unusual numbers and at a suspicious place, it is held that such indictment was not bad for duplicity.
    2. An objection to an indictment for duplicity must be made by motion to quash or, by demurrer, and is not available on a motion in arrest of judgment.
    3. An indictment under the act of 1831, ch. 113, need not set forth the circumstances which make the time and place of an assemblage of slaves suspicious. This is matter of evidence. '
    4. Anindictment was signed “Nathaniel Baxter, attorney general.” It is held that this is a sufficient signature, and the indictment not subject to objection on that account.
    Br-own was indicted in tbe circuit court of Maury couuty for permitting an unlawful assemblage of slaves on his premises. ■The indictment charges that 'William Brown, a grocery keeper on the 15th day of November, 1846, in the county of Maury and State of Tennessee; unlawfully and knowingly did permit slaves in unusual numbers to wit, ten or more, and at suspicious places and times, to hold an assembly on his land and premises without being expressly authorized by the owners of such slaves so assembled as aforesaid contrary to the form of the statute &c. &c. The second count charged the offence in the same words except the number of slaves assembled were not mentioned. This indictment was signed “Nathaniel Baxter, attorney general.” The defendant pleaded not guilty and the case was tried by a jury of Maury county under the direction of Judge Dillahunty at the May term, 1847, of the circuit court. The defendant was found guilty by the jury and the judge arrested the'judgment.
    From this judgment the attorney general on behalf of the State appealed.
    
      
      Attorney general, for the state.
    
      M. S. Frierson, for the defendant in error.
    1st. This indictment charges the defendant with unlawfully and knowingly permitting slaves to assemble upon his lands and premises, in unusual numbers, and at suspicious times and places, without the consent of their owners. Tp complete the offence charged, four things are essential: 1st. The unlawfully and knowingly permitting slaves to assemble upon his lands and premises. 2d. This assemblage must be of unusual numbers. 3d. It must be at suspicious times and places. 4th. It must be without the consent of their owners. And if the state fails to establish either of these essential requisites, the prosecution must also fail; if they are established, then the state has made out an offence, that is unknown to the law. For the 1st section of the act of 1831, chapter 113, creates two separate and distinct offences, when taken in connection with the 2d section of the same act. 1st. The unlawfully and. knowingly permitting slaves to assemble upon his lands and premises in unusual numbers, without the consent of their owners. To make this offence complete, only three, things are requisite. 1st. The unlawfully and knowingly permitting slaves to assemble upon his lands and premises. 2d. This assemblage of slaves must be “in unusual numbers.” 3d. And without the consent of their owners. The second offence created by this statute, is, the unlawfully and knowingly .permitting slaves to assemble upon his lands and premises, “at suspicious times and places,” without the consent of their owners — then to complete this offence, it is not essential that - there should be an “unusual number” of slaves assembling, it is sufficient, if they were assembled “at suspicious times and places.” Now there is no such offence as either of these charged in this indictment, and being the only offence of 'the kind known to the law, the prosecution ¡mist fail. 1 Chitty’s Crim. Law, 280, 282.
    2d. This indictment, charges that the slaves that assembled upon the land and premises of the defendant, assembled there “at suspicious times and places,” without stating the facts and circumstances, which rendered the “times” and “places” “suspicious,” so that the court could judge, whether the premises justified the conclusion drawn from them by the state. And for this reason, the judgment should be arrested. 1 Chitty’s Or. Law, 276; 1 Dev. & Batt.’s L. R., 408; 3 McCord, 533, 543.
    3d. This indictment is signed by “Nathaniel Baxter, attorney general,” without saying of what solicitorial or judicial district he was attorney general, at the timé he signed this indictment, and for this cause, the circuit judge did right in arresting the judgment.
   McKinney, ‘ J.

delivered the opinion of the court.

The bill of indictment in this case, is framed upon the act of 1831, ch. 113, sec. 1, 2. It contains two counts. The first charges “that William Brown, grocery keeper, on &c. at &c., unlawfully and knowingly did permit slaves, in unusual numbers, to wit, ten or more, and at suspicious times and places, to hold an assembly on his lands and premises in said county of Maury, without being expressly authorized by the owners of such slaves, so assembled as aforesaid. The second count is in the same'words, except that the number of slaves so assembled, is not stated. The bill of indictment is signed, “Nathaniel Baxter, attorney general.” The defendant was convicted but the court arrested the judgment; and the attorney general, on behalf of the state, prayed an appeal in the nature of a writ of error to this .court. The first section of the act referred to, provides that: “All assemblages of slaves in unusual numbers, or at suspicious times and places, not expressly authorized by the owners, shall be held and considered an unlawful assemblage, &c.” The second section provides, that» “Any person or persons, Who shall knowingly permit any such assemblage to be held on his or her land or premises, contrary to the provisions of the first section of this act, shall be liable to presentment or indictment; and, on conviction, be fined at the discretion of the'court.”

It is argued for the defendant, that the first section creates two offences; .that knowingly to permit an assemblage of slaves, in unusual numbers, without authority from the owners, of itself constitutes an indictable offence: and, thatto permit, an assemblage of slaves, though not in unusual numbers at a suspicious time and place, constitutes a separate and distinct offence. The objection urged against the indictment, is, that it does not, with precision and certainty, set forth either of these offence^, or rather, that it combines both in the same count. If the construction of the act contended for, was necessary to be decided in this case, still, we think the court erred in arresting the judgment. If the assemblage of slaves, in unusual numbers, be of itself an indictable offence, we cannot perceive upon what sound principle, the statement of the additional circumstance, that such assemblage was at a suspicious time and place, shall be held to vitiate the indictment. All that could be said of it would be, that a stronger case was laid in the indictment than the act requires; and the rule is, that every fact, and circumstance laid in an indictment, which is not a necessary ingredient in the offence, may be rejected as surplusage, and need not be proved on the trial. Arch. Crim. L. 43, 108.

Again, the objection for duplicity comes too late, — it should have been taken by demurrer, or motion to quash; and cannot, we incline to think, be made the subject of a motion in arrest of judgment. Arch. Crim. L. 55, 56.

2. It is said the circumstances which made the time and place suspicious, should have been stated in the indictment:,. we think not. This is properly matter of evidence, and should not be alledged in the indictment. '

3. It is no objection that the attorney general did not add'the number of the district of which he was attorney general, as held at this term in The State vs. Evans.

The judgment of the circuit court arresting the judgment, is therefpre erroneous, and is reversed: and this court proceeding to render such judgment, as should have been rendered by the circuit judge on the verdict of the jury, order that he be fined five dollars, and that security be given for fine and costs.  