#### State v. Allen, a negro slave.

From Wayne.

The County Courts alone can take original cognizance of a common law grand larceny committed by a slave.

If, therefore, a slave who has once had his clergy be indicted in the Superior Court for a grand larceny at common law, the indictment should state that it was the second offence, so as to incur the punishment of death, and that the Court might see upon the. record that it had jurisdiction.

At the spring term last of Wayne Superior Court, Badger, Judge, presiding, the prisoner was indicted at common law for a grand larceny in stealing a steer, and was thereof found guilty by the jury. After his conviction, the prisoner, being brought to the bar for judgment, *615prayed the benefit of his clergy. Upon which Mr. Solid-ter Miller, by a counterplea to this prayer of clergy, showed a conviction before had of grand larceny by the prisoner, and demanded judgment of death against him. The caption of the record of the former conviction recited in the counterplea was in these words: “At a Superi- or Court of law, holden for the county of Green on the second Monday after the fourth Monday of March, in the year eighteen hundred and twenty-two, by and before the Honorable Joseph J. Daniel, esquire, Judge of the said Court.” The indictment set forth in the counterplea was as follows: “ The jurors for the state upon their oath present. that Allen Woodard, late of the county of Green, on the first day of March in the year of our Lord one thousand eight hundred and twenty-two, about the hour of eleven of the night of the same day, with force and arms, at and in the county aforesaid, the dwelling house of one Asa Daniel there situate, feloniously and burglariously did break and enter with intent the goods and chattels of the said Asa Daniel in the said dwelling house then and there being, then and there feloniously and burglariously to steal, take and carry away, and then and there in the same dwelling house with force and arms, twenty pieces of bacon of the value of forty shillings of the goods and chattels of the said Asa Daniel, in the same dwelling house then and there being found, then and there feloniously and burglariously did steal, take and carry away, against the peace and dignity of the state.” The record as recited then stated the arraignment and trial in these words: “ On Thursday the 11 th day of April, 1822, the prisoner Allen Woodard, a colored man, was arraigned at the bar, and upon his arraignment pleaded not guilty. Whereupon the following jury were sworn and charged, viz: (naming them.) The jury find the prisoner at the bar not guilty of the felony and burglary wherewith he stands charged, but guilty of grand larceny.” The record then showed the prayer of clergy by the prisoner, its allow-*616anee by the Court, and a judgment of public whipping (instead of burning in the hand, i according to the act of Assembly of 1816 for that purpose made. The counterplea then averred the identity of the prisoner Allen and the said Allen Woodard, and prayed judgment.

The Solicitor then produced, in the Court below, the record of conviction alleged in his counterplea, and proved the averments of fact, which are also admitted by the prisoner; and moved for judgment.

The presiding Judge refused to pronounce any judgment against the prisoner, ordered the judgment to be arrested and the prisoner to be discharged; whereupon the Solicitor appealed to this Court.

Taylor, Chief Justice,

delivered the opinion of the Court.

The principal question in this case, whether the Superior Courts have jurisdiction of the offence charged against the prisoner, was decided at the last term in the State v. Adam; and it was then considered that the County Court alone could take original cognizance of the of-fence. If the slave is charged with the second offence so as to incur the punishment of death under the act, it ought to be so stated in the indictment, that it might appear on the face of the record that the court had jurisdiction. At present the indictment discloses a criminal charge, which is confined expressly to the County Courts. The judgment must be affirmed.