#### *The State vs. Henry C. Turner.*

Wherever one of the counts in an indictment for trading with a slave is good, die ’court awards judgment upon it, notwithstanding the other counts may be bad.

*Before*Richardson, J., *at*Edgefield, *March*Term, 1842.

This was an indictment for trading with Isom, the slave of Jonathan Wever, deceased, but under the care of J. R. Wever, (son,) and Oliver Hearn, overseer, by buying two bushels of wheat, and selling half a pound of coffee and two pounds of sugar.

The trading was proved, both by Wever and Hearn, who had purposely sent Isom with the wheat in a bag. They saw the bag carried into the lumber room of the defendant, after it had been laid for a few minutes by a fence, and heard it poured out- — listened to the conversation between him and Isom in defendant’s store, and saw the delivery of the coffee and sugar by him to Isom.

On the other hand: Mays and Hall, (just after Wever and Hearn had left the premises, and having been discovered by Turner,) were sent for by defendant. These wit*400nesses found a bag of wheat described as similar to Isom’s lying near the fence, but very unlike the wheat in defendant’s lumber room, and related some circumstances to indicate that Hearn and Wever may have been mistaken, and never heard the wheat poured into a barrel, as they supposed ; as Mays and Hall found no mixed wheats, and the empty barrels of the lumber room contained cobwebs, (fee. The evidence in detail is annexed.

Mrs. Tomkins and Mrs. Harris also supposed that Mr. Turner could have had no sugar or coffee for sale just at that time, as they could not get those articles a day or two before, and knew that Turner replenished with sugar and coffee shortly after.

The case was submitted to the jury, who found the defendant guilty.

The defendant appeals, upon grounds of fact, which must be resolved by the evidence ; and moves also in arrest of judgment.

On this head, the jury were instructed, that the first count was bad; because it did not negative the fact of Isom’s having a permit from any one having the care of him. But that the second and third counts were good. And, therefore, if the trading had been verified by Wever and Hearn, to their conviction, and if Isom had been under Hearn’s care, as alleged in the second count, or under Wever and Hearn, as in the third count, they might find the defendant guilty accordingly.

THE STATE OF SOUTH CAROLINA,? To Ed&eeield District. $

Ata Court of Sessions, begun to beholden in and for the District of Edgefield, in the State ®f South Carolina, at Edgefield Court House, in the District and State aforesaid, on the third Monday in October, in the year of our Lord one thousand eight hundred and forty-one, the Jurors of and for the District of Edgefield aforesaid, in the State of South Carolina aforesaid, that is to say:

Upon their oaths present, that Henry C. Turner, late of Edgefield District, *in*the said State, on the fourth day of September, in the year of our Lord one thousand eight hundred and forty one, with force and arms, at Edgefield Court House, in the District of Edgefield aforesaid, did buy and purchase, of and from a certain slave, of the estate of Jonathan Wever, deceased, named Isom, who was then and there under the care and management of Oliver Hearn, two bushels of wheat of the value of two dollars, the said Isom then and there not having a permit so to sell, from or under the hand of the said *401Oliver Hearn, or from or under the hand of any person *not having*the care and management of said slave; against the form of the Act of die General Assembly of the said State, in such case made and provided, and against the peace and dignity of the same State aforesaid. And the Jurors aforesaid, on their oaths aforesaid, do further present, that the said Henry C. Turner, on the fourth day of September, in the same year aforesaid, with force and arms, at Edgefield Court House, in the District and State aforesaid, did deal, trade and traffic, with a certain negro man slave Isom, of the proper goods and chattels of Jonathan Wever, in his lifetime, who was then deceased, and which said slave was then and there under the care and management of John R. Wever, by selling to the said slave Isom, *one half a pound of coffee and hwopmmds of Irovm*sugar, the said slave then and there not having a permit, so to deal, trade and traffic, from or under the hand of the said John R. Wever, or from or under the hand of any other person having the care or management of the said slave; against the form of the Act of the General Assembly of the said State, in such case made and provided, and against the peace and dig*402nity of the same State aforesaid. And the Jurors aforesaid, upon their oaths *aforesaid,*do further present, that the said Henry C. Turner, on the fourth day of September, in the same year last aforesaid, with force and arms, at Edgefield Court House, in die District and State aforesaid, did deal, trade and traffic, with a negro man slave named Isom, who belonged to Jonathan Wever, in his life time, and was then deceased, and the said slave was then and there under the care and management of Oliver Hearn and John R. Wever, by purchasing and receiving of the said slave *two bushels of wheat of the value of two dollars,*and by selling and delivering to the said slave, one half pound of coffee and two pounds of brown sugar; the said slave then and there not having a permit so to deal, trade and traffic, from and under the hands of the said Oliver Hearn and John R. We-ver, or either of them, or from and under the hand of any person having tire care or management of the said slave; against the form of the Act of the General Assembly of the said State, in such case made and provided, and against the peace and dignity of the same State aforesaid.

*401
      *Grounds taken in arrest of Judgment**

1. That there is no allegation in the first count in the indictment, that the slave did not have a permit to deal-from any person having the care or management of him.

2. That the third count is void for multifariousness, in alleging two or more distinct acts of trading.

3. That none of the counts set forth an act of trading, as no price or consideration is alleged.

4. That none of the counts contain a sufficient description of the ownership or.management of the slave.

*Grounds for neio*trial.

1. That there was not sufficient proof of trading.

2. That the presumptive proof, under the Act of 1834, was insufficient, as the defendant was not indicted as a shopkeeper.

■ 3. That the description of the slave was falsified by the proof.

Wardlaw, for the motion.

Caldwell, Solicitor, contra.

*Curia, per*

Richardson, J.

Both Hearn and Wever proved the trading of defendant with Isom, directly, by selling him the coffee and sugar, as alleged in the second count of the indictment. And that Isom was under their management. They also proved; circumstantially, that Turner received the wheat of Isom and paid him, in part, with *402coffee and sugar; which verified the whole trading charged in the third count. The defendant was. not indicted as a shop keeper, although it appeared plainly that he kept a store. We cannot, therefore, grant a new trial, upon the evidence, because it fully justified the verdict.

CALDWELL, *Solicitor.*

Next, as to the motion in arrest of judgment. The first count may be admitted to be defective and bad, for the reason alleged in the first ground of the motion in arrest. The defendant had the benefit of that admission, by the charge of the judge; and was, of course, convicted under the second or third count — or under both. If one of them be good, it is enough. But both are good. The second alleges Isom to have been under the care and management of John R. Wever; and the alleged trading was, in selling Isom coffee and sugar, without a permit. The third count varies from the second, in this — that Isom was under the care and management of both Hearn, and J. R. Wever ; and that the defendant both sold Isom the coffee and sugar and purchased the wheat at the same time. These acts were not separate tradings, but separate parts of the same trading. This count embodied the whole evidence as given by We-ver and Hearn, and cannot be defective, by stating the whole trading, as consisting in the purchase of one article, and the sale of another. This third count included the second count; and did more, by alleging that Isom was under the care of Hearn, as well as Wever; and that the defendant purchased the wheat as well as sold the coffee and *403sugar, either of which was a sufficient act of trading. But the two do not lessen the trading. There is, then, no deject in either of these two counts ; and I need scarcely observe, that wherever one of the counts is good, the court awards judgment upon it, (1 Salk. 384; 1 Johns. 7, 322; 2 Burr. 985; Doug. 723;) notwithstanding the other counts were bad. It was formerly otherwise, in civil actions, in many cases, where the court could not tell but that the jury had awarded the damages upon the bad count. But never in criminal prosecutions, where the court awards the punishment upon the good count alone.

This motion is, therefore, also dismissed.

O’Neall, Evans, Earle and Butler, JJ., concurred.