#### STATE v. HENRY M. LONG.

Where there are three counts in a bill of indictment, and testimony was offered with respect to one only, a verdict, though general, will be presumed to have been given on that count to which the testimony was applicable.

Where a negro, having a jug, was seen going, in the night time, into the house of one who kept spirituous liquor for sale, and after a delay of ten minutes, returned with his jug containing liquor, it was certainly not erroneous in a Judge to instruct the jury, they might infer that the liquor was purchased of the owner of the house.

Indictment for trading with a slave, tried before Caldwell, J., at the last term of Columbus Superior Court.

The indictment contained three counts. The first charged that the defendant, “ did unlawfully sell to Luke, a negro slave, one gill of spirituous liquor,” the said slave not having a permission to buy, &c.

*25The second count, which is the more material one, from the view taken of the case by this Court, was as follows:

“And the jurors aforesaid, upon their oath aforesaid, do further present, that Henry M. Long, late of the count}' aforesaid, on the day and year aforesaid, in the night time of the same da.y, between the hours of sunset and sunrise, at and in the county aforesaid, unlawfully did trade with Luke, a negro slave, centrar}1 to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.”

The third count charges that the defendant, “ did unlawfully deliver to Luke, a negro slave, one gill of spirituous liquor,” without the slave’s having a written permission.

Nathaniel Soles, a witness for the State, testified that he was at the house of the defendant, on a certain night, about eight or nine o’clock ; that he heard a noise like a tap on the door; that the defendant opened it, and he saw a negro at the door, but who it was, he did not know ; that he know a slave named Luke, the property of James Beach, but whether it was Luke or not, he could not say ; that after the negro came to the door, the defendant went out, and shortly afterwards came back into the house with.a jug, that would hold a quart or more, which he filled with liquor, out of a barrel, and carried it out; that after a while, the defendant came back without the jug. ,v

„ Daniel P. Beach testified, that he was the son of James Beach, the owner of Luke; that he went to watch, whether the defendant traded with the said slave ; that early in the night, he saw Luke go towards the house of the defendant with a jug, which held between two and three quarts; that he (witness) was about twenty-five yards from the house ; that the negro remained some ten minutes, and returned with the jug, which then had liquor in it. The witness stated, that he did not know whether the jug had liquor in it, when the slave went towards defendant’s house or not. It was insisted, by the defendant’s counsel, that there was no evidence before the *26jury, that the trading spoken of by the two witnesses, was one and the same tiansaction.

The Court charged that there was evidence to submit to them, that it was the same transaciion, of the weight of which, they were the proper judges; that they had the right to convict on circumstantial evidence, and that men liad been hanged on that kind of evidence.

The jury retired, and remained out till the next day, when they reported that they could not agree. Thereupon, the Court recapitulated the evidence, and then said, there were three kinds of presumptions as laid down by a great master of the law — a violent presumption, that weigheth much' — a probable presumption, that weigheth but little, and a slight presumption, that weigheth not at all; and he put a case of violent presumption, tó wit, where a man was seen rushing out of a room with a bloody sword in his hand, and on going into it, another was found weltering in his blood ; it was a strong presumption that he who came out with a bloody sword, was the perpetrator, and the Court left it to the jury to compare the two cases. Defendant’s counsel excepted.

Verdict for the State. Judgment and appeal.

Attorney General, for the State.

H. G. Haywood,, for the defendant.

Battle, J.

Though there were three counts in the bill of indictment, the testimony was offered with reference to the^ second only, and therefore the verdict, though general, must be presumed to have been given on that alone. Such would be the case, where there were two counts in a civil action ; as, for instance, in the action of assumpsit, and we do not see why the same rule should not apply to two or more counts in an indictment; Jones v. Cooke, 3 Dev. Rep. 112; Morehead v. Brown, 6 Jones’ Rep. 368.

The only enquiry, then, is, whether his Honor, in the Court below, erred in his charge to the jury in reference to the testimony given on the second count. The counsel for the defendant contends that he did, for, he insists that the testimony *27of neither of the two witnesses, Soles or Beach, was, alone, sufficient for the conviction of his client, and, that to make a case of guilt, it must appear that both testified to the same transaction, and of that, he insists, there was no evidence. The cases cited by the counsel show, clearly, that nothing is to bo considered evidence, to be left to the jury, tending to prove a fact, which merely raises a conjecture of that fact. We approve of those cases, and feel bound by their authority, but we do not think they apply to the case now before us. The charge of the Judge was not confined to the tendency of the testimony, to show the identity of the transactions spoken of by the two witnesses. Even as to that, there was some evidence, however slight it might be, and his Honor had no right to withdraw it from the consideration of the jury. Each witness stated that there was a negro man — a jug which would hold a quart or more, and that the negro went to the defendant’s house early in the night. So far, there was some correspondence in their testimony, and though it may have fallen lar short of raising a violent presumption of identity, which weigheth much, it was more than that slight presumption, which weigheth not at all. Bnt his Honor went further in his remarks upon the effect of the evidence, and as we understand it, left it to tlie jury to decide whether the testimony of Beach alone, was not sufficient to justify the conviction of the defendant. It was to that testimony, that the illustration of a violent presumption, which he gave, was most applicable; and it seemed to strike the jmy, as it has struck ns, as being very forcible to show the defendant’s guilt. If a negro be seen going to a house in the night, with a jug, and after staying there only ten minutes, returns with liquor in the vessel, we think a jury may very reasonably infer that the liquor was purchased of the owner of the house, and this inference is rendered almost a certainty, when it is shown by other evidence, that the owner had liquor for sale. We think that the verdict was right, and that there is no error in the judgment, which was rendered thereon.

Per Curiam,

.Judgment affirmed.