#### THE STATE v. DUNLAP SCOTT.

To repel the allegation of an alibi, it is relevant to prove, that on the morning after the offence was committed, a servant of the defendant went to a neighbour’s house, to borrow a pair of saddle-bags, and returned with them towards home, if it he further proved, that the defendant was seen soon afterwards, with a pair of saddle-hags, going in a direction from home.

It is not error for a judge to omit remarking upon a part of the testimony, if no particular charge in relation to it be prayed.

After a trial and conviction have been had in a county to which the cause has been removed, upon a motion in arrest of judgment, for a defect in the transcript of the record, the judge may suspend the judgment, and order a certiorari, for a more perfect transcript; and if, upon the return of the certiorari to the next term, it appears, that the first transcript contained a full and complete record of the proceedings, although it was written upon two separate and detached sheets of paper; the first containing the indictment, plea, and order of removal, and the second, the other entries, with the certificate of the clerk; the court may then proceed to pronounce judgment; for it then appears, that it had jurisdiction of the cause, at the term when the trial took place.

An indictment for malicious mischief may conclude at common law; and in such indictment, it is not necessary to charge malice against the owner of the property injured.

The case of The State v. Simpson, 2 Hawks, 460, approved.

At the Fall Term, 1833, of Rutherford Superior Court, the following bill of indictment was found against the defendant, to wit: •

“ The jurors for the state upon their oaths present, that Dunlap Scott, late of said county, on the first day of October, in the year of our Lord one thousand eight hundred and thirty-three, with force and arms, in said county, one steer, of the value of five dollars, of the goods and chattels of one Levi M'Clure, then and there being, then and there unlawfully, wantonly, maliciously and mischievously did kill, to the great damage of the said Levi M'Clure, and against the peace and dignity of the state.” The defendant pleaded not guilty; and at the ensuing Spring Term of the said court, the case was, on his affidavit, ordered to be removed to the county of Buncombe, for trial. The clerk of Rutherford Superior Court accordingly made out what purported to be a transcript of the case, and sent it to Buncombe, where it was *36received, placed among the records, and entered upon the docket of causes for trial at the Fall Term, 1834, of said county. This transcript was written on two pieces of paper, which were not attached to each other; the indictment, plea, and order of removal being contained in the first piece, and the other entries, with the certificate of the clerk, being on the second; but both pieces together contained a complete record of the case. The case thus sent, and entered on the docket of Buncombe Superior Court, was regularly continued, until Spring Term, 1836, when the defendant went to trial, before his Honor Judge Strange, upon the issue joined on the record, as it then stood. In the course of the trial, the defendant relied, in part, on an alibi; and the solicitor of the state, in order to disprove it, introduced a witness, who testified, that very early in the morning, after the offence was committed, a servant of the defendant obtained from a brother of his a pair of saddle-bags, and went off with them towards the defendant’s house. This evidence was objected to by the defendant’s counsel, and his Honor remarked, that it was irrelevant, unless the defendant could be directly or circumstantially connected with the acts of the servant. It was then proved further, on the part of the state, that, at a later hour of the same morning when the servant was seen with the saddle-bags, the défendant y?as seen with a pair of saddle-bags, on horseback, going in a direction from home.

In his charge to the jury, the judge did not direct their attention to the circumstance of the saddle-bags, although it was relied upon in argument by the counsel for the state. The defendant was convicted, and moved for a new trial, because the judge had admitted the evidence in relation to the saddle-bags, and because he had not remarked upon that circumstance in his charge to the jury. The motion for a new trial being overruled, the defendant moved in arrest of judgment, upon the ground that the transcript sent from Rutherford had not been properly certified by the clerk of the Superior Court of that county. His Honor suspended the judgment for that term, and directed a certiorari to be issued to the clerk of Ruther*37ford Superior Court, for a more perfect record. At the next term of Buncombe Superior Court, to wit, Fall Term, * 1836, an unexceptionable transcript was returned from Rutherford, when, upon a motion for judgment, on behalf of the state, before his Honor Judge Dick, the defendant’s counsel moved in arrest of the judgment, for the following reasons: 1st. On the ground that the Superior Court of Buncombe had no jurisdiction of the case at the term when the trial of the issue took place. 2dly. That the offence charged was not one at common law. 3d!y. That the indictment did not charge malice against the owner of the property. These reasons were overruled, judgment pronounced, and the defendant appealed.

Pearson, for the defendant.

The Attorney-General, for the state.

Daniel, Judge,

after stating the substance of the case, as above, proceeded: — We see no ground for a new trial in this case. The evidence objected to was admitted — and, as we think, correctly — to repel an allegation made by the defendant, of an alibi. And after the evidence was admitted by the court, the weight and effect of it was matter for the jury only; and it seems to us, that there was nothing left for the court to remark upon; especially, as no particular charge concerning this evidence was prayed by the defendant. We have examined the reasons in arrest, and concur in opinion with the judge who pronounced thejudgment. 1st. Thetwodetachedpiecesofpaper writing purporting to be a transcript of the record, contained everything necessary to give Buncombe Superior Court jurisdiction: it contained the indictment, plea, and order of removal. In that shape it was entered on the state docket, and the defendant went to trial. From great caution, the judge suspended judgment at the trial term, and sent a certiorari for such a record as could not be cavilled about. At the term judgment was rendered, the record was unexceptionable, and showed that the two pieces of paper which had been received as the record of the case, and on which the defendant had been tried, con*38tained a true and complete transcript of the record when it was removed from Rutherford. So, when judgment was pronounced, the record showed that the case had been properly removed; and that Buncombe Superior Court had jurisdiction of the case, at the term the trial took place. The record being unexceptionable when judgment was prayed, there was nothing to restrain the judge from pronouncing it.

2ndly. This court decided, in the case of the State v. Simpson, 2 Hawks, 460, that an indictment for malicious mischief, which concluded at common law, was good. That decision was made in the year 1823, and since that time many convictions on indictments for malicious mischief, at common law, have taken place on the circuits of this state. In the year 1826, the legislature indirectly approved of the decision; for in the act limiting the time that indictments for misdemeanors should be brought, it is declared, that in all trespasses and other misdemeanors, except the offences of perjury, forgery, malicious mischief, and deceit, the prosecution shall commence within three years after the commission of the offence. After what has taken place, we think the period too late for us now to examine further into the question.

3dly. The objection is, that the indictment does not charge malice against the owner of the property. We have looked into the books of forms and precedents, and find that the form of this indictment corresponds with the form prescribed in the books. What evidence the state must produce to support such an indictment as this, we are not called on to decide. We think there is no ground either for a new trial or arrest of judgment; and this opinion will be certified to the Superior Court of law for the county of Buncombe, that it may proceed to final judgment in the case..

Per Curiam. Judgment affirmed.