Opinion of the court delivered by
Upon this record one question is, -whether this is a bad indictment, for not having inserted in it, that the harboring was “without the consent of the owner.” And we are all of opinion, that the omission of this averment is fatal. If the indictment be so drawn, that all the facts stated in it may he true, and yet the defendant he innocent, he cannot be punished. In this case although every word of the indictment must be taken to he true, yet it cannot be seen that the defendant is guilty of any offence; for the harboring may have been with the consent of the owner,and must be so taken in favor ofinnocence, where it is not negatived in the indictment. The law is correctly laid down in 1 Chitty’s Cr. Law 233, which cites 2 Hale’s Pleas Cr. 170. Foster 430. 1 East’s Rep. 441.
Another question is, whether judgment can be given in the absence of the defendant. The law is law down in Duke’s case 1 Salkeld 400, where it is said, that judgment cannot be given for a corporal punishment against one who is absent, though judgment for a fine may. See Queen vs. Templeman, 1 Salk., 56. Judgment reversed.