#### STATE v. McNAIR.

The delivery of spirituous liquor to a slave, after night-fall, in pursuance: of an order from Ms overseer, for his (fhe overseer’s) own use, is not unlawful.

Indictment tried before Manly, Judge, at the Fall Term, 1853, of the Superior Court of Edgecombe County.

The proof was, that the spirits were delivered by the defendant to the slave, after night-fall, in consequence of the-following order, from the overseer of the negro :

“ Mr. McNair: — You will please to send me 5 quarts of whiskey, by-boy Jerry. James H. Higgs.”

*181The price of the liquor was paid by the negro on delivery. The indictment charges that the spirits were not purchased for the owner or employer of the slave, nor by their order.

The Court instructed the jury that, under the circumstances, the trading was unlawful. There was a verdict of guilty. Judgment and appeal.

Attorney G-eneral, for the State.

Moore, for the defendant.

Nash, C. J.

In the opinion of his Honor below, there is error. The indictment charges the trading to have been with the slave Jerry, for himself, for spirituous liquors— “ the said spirituous liquors, then and there, not being for the owner or employer of said slave, or by the order of the owner, or of any person having the management of the same.” Jerry had an order from Higgs, who was the overseer of Mrs. Gregory, the owner, and under whose management and control the slave was. This order directed the the defendant, to send him five quarts of whiskey by Jerry. There was no evidence to show that the order was otherwise intended than it purports on its face. It is not pretended that there was any intent to evade the law. The act under which the indictment is found had no intention to abridge the legitimate use of his slave by the owner; it is still left him; it is not denied he may use him as' his agent. The evidence does not support the charge.

The judgment is reversed, and there must be a venire da ' novo.