— Stephens J.
By the Court.
delivering the opinion.
The motion in arrest of judgment in this ease, is-founded on the allegation, that the defendant was not tried upon an original indictment found by the grand jury, nor upon a legally established copy. The record discloses that the indictment was expressly waived by the defendant, and the presentment put in its stead. The allegation then is answered by this waiver, unless it he understood as an allegation that the paper on which he was tried, was net an original presentment nor a legally established copy. Construing the allegation in this sense, it is unnecessary to consider whether it is true or not, for it is sufficient that it is not shown to be true on the face of the record. It is a well settled principle, that a motion in arrest of judgment can be sustained only upon such cause as is apparent upon the face of the record. The effort in this case to show the fact by affidavits, is a confession, (if any evidence were needed,) that it did not appear upon the face of the record. The paper on which the trial was had, purported to be the original presentment, and there is nothing on the record showing that it was not what it purported to be. It was said in the argument, that the record showed the original had been destroyed or lost. True, but it did not show that being lost, it had never been found. If found, it was the proper paper on which to have the trial, notwithstanding a copy had been established in its place. The paper itself is a part of that record into which the Court had to look, in considering the motion in arrest of judgment; and the paper purported to be the original, that is to say, it purported that it had been found. There is nothing else in the record inconsistent with this, and there is nothing there, therefore, to support this motion. Had a motion for a new trial been made on the ground, that the paper, though purporting to be the original, was not such, nor a true copy, and that the defendant had been misled by the statement of the Solicitor General, into such a mistake as could have hurt him, the case would be a very different one. But the motion for a new trial is not founded at all upon this matter, but only on the ground, that
The verdict was unsupported by the evidence. There was an abundance of evidence showing, that the defendant had repeatedly sold liquor to the negro in question for his own use, and that the negro had drunk the liquor in his presence. But it was attempted to justify this selling under a general verbal order from the employer of the negro to the defendant, to let the negro have spirits in “ reasonable quantity,” whenever he wanted it. It may be remarked that this very defence shows that the spirit was for the negro’s own .use, but it utterly fails to show legal authority for the, sale. The law does allow the owner, overseer or employer of the slave, to furnish him such quantity as the owner, overseer or employer may deem beneficial to the slave’s health, but the law has not done so foolish a thing as to put this same discretion in him who sells the spirits, nor can it be put there by delegation from him who has it. If it were placed there, the quantity supplied would generally depend much less upon its “reasonableness” or healthfullness, than upon the amount of money the slave might happen to have. How many vendors would consider that a purchaser was transcending the limits of reason or health, so long as he was paying for all he got.?
Judgment affirmed,