19 Ala. 560 | Ala. | 1851
The charge in the indictment in this easels, that the defendant sold “ to one Henry,, a slave, the property of one Maria Herron, a certain commodity, to-wit, one gallon of whiskey, without the consent of the master, owner or overseer of said slave, either verbally or in writing, expressing the article-permitted -to be sold, being first had and obtained.”
The defendant contends that the indictment is not good, because it was framed under the act of 1841-, which was repealed by the act, “the more effectually to suppress the evil practice-of trading with slaves,” passed in 1850. We think that the first act was repealed in part by the latter, but we consider the indictment good under the latter act. The exception in the indictment in favor of the defendant, is much broader than he was, entitled to under the last act, and giving him all, -and even more-latitude than he was entitled to, he certainly ought not to- complain.
On the trial, it was proven that the defendant sold and delivered to the slave named in the indictment, several drinks of either ale or whiskey, but of which, the witness could not state.. The court refused the defendant’s request to charge the jury
It is well settled that even an unnecessary allegation, but which is descriptive of the identity of that which is legally essential to the charge, must be proven as laid. Thus, an indict-ment for stealing a- black horse will not be supported by proving-the stealing of a horse of some other color. The allegation in-this case, that the defendant sold whiskey, was not supported. by the proof that he sold alte.. The court erred in- ruling to the-contrary, and the-judgment is therefore reversed and remanded..