
    The State v. Andrew Priester.
    One count in an indictment charged the buying of corn from a slave, another the selling of liquor. The defendant, who was not a vendor of spirits by profession, had traded the liquor for the corn. A general verdiot of guilty was held good; for the two counts charged the same act and the same offence.
    It seems that it would have been otherwise, had the defendant been a distiller, vendor, or retailer by profession; for then, the offence in the second count would have been that created by A. A. 1834, while the first charged a violation of the A. A. 1817.
    The words “distiller, vendor, or retailer,” in the A. A. 1834, refer only to distillers, &e., by profession or habitual practice.
    Two distinct offences, with different penalties, may be charged in the same indictment; but care must be taken to have the verdict framed so as to secure the several counts.
    Before Earle, J., at Coosawhatchie, Spring Term, 1839.
    The defendant was convicted upon an indictment which charged that he “ did buy and purchase of and from a certain slave of Frederick Mole, named Frank, one bushel of Indian corn, of the value of one dollar, the said slave then and there not having a permit to sell, from or under the hand of the said Frederick Mole, &c.” And, in a second count, that he “ did deal, trade and traffic” with the same slave, “by selling said slave Frank certain spirituous liquor, to wit, five quarts of rum, the said slave, then and there not having a permit so to deal, trade or traffic, &c.” Verdict, guilty.
    The defendant appealed and moved the Court in arrest of judgment, on the ground, that two distinct offences, viz.: buying corn and selling spirits to a slave, were joined in one indictment., (2 M’C. R. 257.)
   Curia, per Earle, J.

The defendant is indicted under the A. A. 1817, (p. 25), for unlawfully trading with a slave. There are two counts in the indictment; one for buying from the slave a bushel of corn, the other, for selling him five quarts of rum. It was one transaction, and tho solicitor has only varied the statement so as to adapt the charge to the proof he was likely to make. He might prove that Frank had obtained the rum without being able to show that he had exchanged the corn for it; or else, that he did exchange a bushel of corn for the rum; so that only one offence was committed, and that, was under the Act of 1817:

It is supposed that the second count is framed under section 3, of the A. A. 1834, (p. 12.) That Act relates only to cases where a distiller, vendor, or retailer of spirituous liquors, sells, exchanges, gives, or otherwise delivers liquor to a slave. Now, it is true, in common parlance, that any one who sells an article is a vendor ;• but the Act was obviously intended only to embrace open and habitual vendors and licensed retailers; and the words, vendors and retailers, are used to designate that class of persons. Why the Legislature, in the case of a sale, or exchange of liquor to or with a slave, by the class of persons, which would come within the provisions of the Act of 1817, against the unlawful dealing or trading with a slave, should have reduced the maximum of imprison-Kent from twelve to six months, and of the fine from $1000, to $100, it would require more sagacity than I possess to discover. It would certainly be as criminal and as mischievous in Andrew Priester, being a distiller, or licensed retailer, to give a slave a jug of rum for a bushel of corn, as it would be in a worthy citizen, pursuing neither of these respectable occupations, to give a slave twelve and a-half cents for a dozen of eggs, or a pair of shoes for a dozen chickens. Yet the distiller, or retailer, as a proof, I suppose, of the high estimation in which his useful calling is held, can be made to suffer only one half of the imprisonment and to pay one-tenth of the fine which tfie rigor of the Act of 1817 imposes on his less respectable neighbor. Andrew Priester, however, has not been indicted as a vendor, or retailer, and, to his misfortune, there was no proof of his being either within the meaning of the Act of 1834, as we construe its terms. There is, therefore, no misjoinder, as has been supposed, of inconsistent charges, nor indeed of two distinct offences with different penalties. Even that, however, is allowable according to the strictest rules of criminal pleading ; but care must be taken to have the verdict framed so as to secure the several counts.

See 3 Hill, 191; 11 Rioli. 450. An.

Hutson and Cohock '& Hutson for the motion;

Edwards, Solicitor, contra.

Motion dismissed; the whole Court concurring. 
      
       7 Stat. 454. An.
      
     
      
       7 Stat. 469, § 3. An.
      
     
      
       1 McM. 190; 7 Rich. 485 ; 3 Hill. 1, 2 N. & McM. 561. An.
      
     