THE STATE vs. NELSON COZENS.

An indictment against a free person of color, which charges, that he did “ buy of, traffic with, and receive from a certain negro slave, &e. ono peck of corn,” &c. is good, although the Act making the offence of a free person of color dealing with a slave, only uses the words “ if he shall trade with any slave, either by buying of or selling to him,” &c. The other words used in the indictment aro mere surplusage.

Appeal from the Superior Court of Law of Person • County, at the Spring Term, 1839, Ms Honor Judge Settle presiding.

■This was an indictment against the defendant, a free negro, commenced in the County Court of Granville, which charged “ that he did buy of, traffic with and receive from a certain negro slave, Lewis, the property of Fleming Beasley.” Upon the trial it was proved, that the defen*83dant bought and received from the said slave, Lewis, a peck of corn. It was also proved, that the corn was the property of Fleming Beasley. The Court charged the jury upon the evidence. The jury found the defendant guilty. A motion was then made in arrest of judgment which was overruled, and the defendant appealed.

Attorney General, for the State.

No counsel for the defendant.

Nash, J.

The defendant, a free man of color, was indicted for trading with a slave. The indictment charges, that he, “ on the 11th of Feb. 1837, in the County, &c., did buy of, “ traffic with, and receive from a certain negro slave, “ named Lewis, the property of Fleming Beasley, &c., “ one peek of com, &e.” Under the charge of the presiding Judge, the jury convicted the defendant. A motion was made to arrest the judgment, but for what cause is not set forth. We have carefully looked into the record, and can perceive no reason why the judgment of the law should not be pronounced upon the defendant. The indictment is preferred for a violation of the 5th sec. of the Act of 1826, which declares, that “if any free “ negro or mulatto shall trade with any slave, either by “ buying of, or selling to him, &c.” The act forbidden, and made indictable, is sufficiently obvious. It is the trading of such persons with a slave; and the section contains two specifications of the offence, to-wit: either buying of, or selling to ; either act is within the section, and constitutes an offence of a criminal nature. In this case, the words, “traffic with and receive from,” are connected with the Avords “ buy of.” They are not found in the 5th section, but are in the 1st section of the same Act, and, it is probable, the pleader, who drew the indictment, was misled by not adverting to the fact, that the first section extended to all citizens, and inflicted a pecuniary fine or penalty, and that the fifth was confined to a *84particular class of individuals, and punished the offence in a different manner. The insertion of those words, however, does not vitiate the indictment; they are mere surplusage, for they may be stricken from the indictment, and still the description of the offence charged is full and complete. Utile, per inutile, non viliatur. Thus, if an act punishable by the common law, is charged in an indictment as contrary to a statute, and there be no such'statute, the individual may be convicted and punished as at common law.

We see no error in the record, and the judgment below is affirmed.

This opinion will bo certified to the Superior Court of Person County.

Pee. Cukiam. Ordered accordingly.