concurring.
Abner Conner was indicted for simple larceny in stealing a negro, and was found guilty. The indictment was founded on a presentment. After verdict a mofion was made by him. in arrest of judgment. This motion was put on two grounds j 1st, that the presentment "charged the offence to have been committed on a day subsequent to the finding of the grand jury.” 2d, " that the bill of indictment charges the offence to have been committed on a different day from that alleged in the special presentment.”
The Court overruled the motion.
I think the Court did right.
[1.] The allegation of time in indictments is, in general, immaterial. The time when an offence is committed cannot, in general, be a matter affecting the real merits of the *523offence; “ and no motion in arrest of judgment shall be sustained for any matter not affecting the real merits of the offence charged in such indictment.” 2 Sec. 14 Div. Pen. Code.
This motion having been overruled, Conner moved for a new trial, which motion was also overruled.
The first ground of the latter motion was, that “ the Court after objection by the prisoner, refused to set aside the array of jurors on the ground that the array was summoned partly by bailiffs.”
[2.] It is to be presumed, that these bailiffs acted at the instance of the Sherifi; that is, that they were his special deputies. “ And the said Sheriffs” “ shall have power,” “ to appoint, as there shall be occasion, one or more deputies.” 46, Sec., Jud. Act of 1799.
I think that there was nothing in this ground.
The second ground was, that the presentment “ was not presented to the jury on the demand of the prisoner, the same being made after the jury was empannelled.”
Of what service could the presentment have been to the jury? The variance between the presentment and the indictment as to the time, was not a matter to acquit on. The finding ought not to have been affected by the presentment, if the jury had seen the presentment.
I see nothing then in this ground.
The third ground was, that “ the Court permitted testimony to be given to the jury, after objection by the prisoner, the the jury having been empannelled upon the bill of indictment without the the special presentment.”
[3.] I think, that empannelling the jury upon the indictment was quite sufficient; I do not know of any law requiring the empannelling to be, on both the indictment and the presentment, in cases founded on presentment.
The fourth ground was, “ that the Court refused to hear testimony to show that the prisoner was arraigned on the special presentment, and not on the bill of indictment; and *524refused the demand of the prisoner, that he be arraigned on the bill of indictment.”
The fifth ground was, that “ the Court refused the arraignment as stated in the last ground, and permitted the trial to> proceed after motion by the prisoner to-exclude testimony from the jury until he was arraigned upon the bill of indictment.”
[4.] I dispose of both of these two grounds in a word. There was no substantial difference between the presentment and the indictment. The variance in the allegation of time, was not a matter of substance. Consequently, it made not the least practical difference to the prisoner, whether he was arraigned on the one or on the other.
The sixth ground was, that “ the Court, after objection by the prisoner, permitted James T. Holeman to give testimony through an interpreter, the said James T. Holeman being unable to speak loud enough to be heard by the jury, on account of temporary weakness and debility — said testimony being communicated to the Court and jury by Col. George M. Dudley, he being called upon by the Court, after the witness had communicated it to him in a whisper.”
If this ground be good, then the testimony of all persons speaking a strange language as well as of all persons who are mutes, is to be excluded. But we know, that the testimony of these persons, is not to be excluded. That is admitted.
I think that there is nothing in the ground
The seventh ground was, I believe, abandoned.
The eighth ground was, “that the Court charged the jury, that if they believed from the evidence, the defendant took and carried away the negro, Seaborn, the property of Markett,from the 26th Court ground, or any other place in Sumter county, with intent to steal said negro, the defendant is guilty. That it made no difference whether others aided and assisted or not, if the defendant actually perpetrated the *525theft. That if Holeman and Philips both be guilty,- that does not help this defendant.”
I can see no fault in this charge. Indeed, I believe, that this ground was also abandoned.
The ninth and last ground was, that “ the jury found contrary to the evidence, and contrary to the weight of evidence.”
I think they did not. I think they had an abundance of evidence to warrant their verdict.
The result is, that I think the Court below also did right, in overruling the motion for a new trial.