#### State v. Daniel, Crese and Piety, negro slaves.

1 From Wayne.

When slaves are charged with a simple grand larceny at the common law, to give the Superior Courts jurisdiction, it should be stated in the indictment that it is the second offence, because otherwise it is not punishable with death.

A t the spring term last of Wayne Superior Court, before Badger, Judge, the prisoners, three negro slaves, were indicted by the Grand Jury for a simple grand larceny at common law in stealing a steer. The prisoners being put to the bar for their arraignment, and the indictment being read to them, it was stated and admitted by tiie Solicitor that neither of the prisoners had before been admitted to the benefit of clergy, or been convicted of any felony.

The presiding Judge being of opinion, that the offence charged in the indictment was not within the act of Asr sembly giving the Superior Courts jurisdiction of offences committed by slaves, as the punishment could not, upon conviction, extend to life, refused to put the prisoners to answer the charge, and ordered the indictment to be quashed. Whereupon Mr. Solicitor Miller, for the-state, appealed to this Court.

Taylor, Chief Justice.

It is only upon a second .con, viction of the offence stated in the indictment, that the punishment of death is annexed to it; and it is consequent-ly triable in the County Court, according to the act of 1793, eh. 381. The Superior Courts obtain jurisdiction under the act of 1816, only where the offence is so charged as to appear upon the face of the indictment tó be punishable with death. It would be vain to try the prisoner first and then to consider whether he was liable to punishment. This was settled in the State v. Adam at the *618last term. The Court acted correctly in refusing to put the prisoners to answer the charge.

By the Court, Judgment aeeirmed.