| La. | Jul 15, 1859
This case comes up on a motion in arrest of judgment.
The objections, as stated in the motion are : 1st, “ That there is no law in this State, making the inciting, moving and procuring of a person to inveigle, steal and carry away any negro or other slave, an offence, as is charged in the indictment, upon which judgment is rendered in this case ; 2d, That this defendant did not have a copy of the venire and indictment served on him two entire days before he was tried, as appears by the return of the Sheriff on the back of the indictment.”
The last objection, however good it may be when urged before going to trial, loses its efficacy when the party seeks to avail himself of it after verdict rendered in the case. This right is waived when not claimed before trial. State v. Hernandez, 4 An. 379 ; State v. Price, 6 An. 691; State v. Benjamin, 7 An. 47 ; State v. Holmes, 7 An. 567; State v. Kentuck, 8 An. 308; State v. Maxent & Guesnon, 10 An. 743 ; and State v. Jackson, 12 An. 679.
The indictment charges that the prisoner “ did feloniously and maliciously incite, move, procure, aid, hire and counsel the said Robert Fuller and the said Robert H. Holmes alias W. B. Hall, in manner and form aforesaid, to inveigle, steal and carry away.” The prisoner contends that six different offences, three of
The statute of 1819 (Acts p. 62-3) reads as follows : “ All and every person and persons, who shall inveigle, steal, or carry away any negro or other slave or slaves, or shall hire, aid, or counsel any person or persons to inveigle, steal, or carry away,” &c. The addition in the indictment of the terms incite, move and procure, far from changing the nature of the offence charged under the statute, is merely explanatory. The indictment is couched in the very words of the statute, which, in this respect, denounces the offence committed by accessories before the fact; and although it would have been sufficient to have inserted the expression used by the statute to define the offence of an accessory before the fact, to the inveigling, stealing and carrying away of slaves, yet, there can be no impropriety in adopting the common law form of charging the offence, as it embraces the precise terms of our statute.
It is contended, in the last place, that the statute upon which the present indictment is framed, has been repealed by the Act of 1865, relative to crimes and offences. The failure to reenact this statute in the Act of 1855, above mentioned, is not affected by the repealing clause, “ that all laws contrary to the provisions of this Act, and all laws upon the same subject-matter, except what is contained in the Civil Code and Code of Practice, be repealed.” In the list of offences, comprised in the 125 sections of this Act of 1855, there is not one upon the same subject-matter as the offence under consideration. We have already held, that the Act of 1855 does not, by omitting any particular crime or offence, existing previously, repeal the same. State v. Wilson, ante, p. 446.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed.