told the Jury he thought the prisoner might be found guilty either at common law, or upon the statute.
Ashe, J.thought he might be found guilty at common law, but could not be convicted on the statute.
The Jury withdrew, and found the prisoner not guilty of the felony upon the statute, but guilty of the felony at common law.
On the next day, the prisoner was brought to the bar, and being asked what he had to say, &c.
Harris & Martin moved an arrest of the judgment, and filed reasons.
The counsel for the state, not being ready to enter upon an argument, on this motion; the consideration of it was postponed till next court: and
On motion of the prisoner’s counsel, it was ordered that the prisoner be discharged from confinement, on his giving bail, before some of the Justices of the county of Craven, residing in the town of Newbern.
In September 1792, there was no court.
*72And at March Term, 1793, the consideration of the motion, in arrest of judgment was taken up, and without any argument.
Judgment arrested.
*** The prisoner, had remained in jail, not being able to procure bail, upwards of a twelve months, and Mr. Sol. Gen. Jones partly out of compassion to him, and partly on account of the late hour at which the court came to the cause, on the last day of the term) did not oppose the motion in arrest.