The Court were of opinion :
1. That the averment “contra formam Statuti,” was unnecessary : Semple and Parker, however, dissenting. 2. The: whole Court were of opinion, that even if the Indictment were erroneous in this respect, yet that the objection came too late after verdict, being cured by the Statute of Jeofails in Criminal Cases, (b) The Writ of Error was therefore refused.
Note (in edition of 1858). — Where the offence is entirely created by Statute; or, where an offence at Common Law is made by Statute a crime of a higher nature, as a misdemesnor, a felony; or where the offence existed at Common Law, but an additional punishment is inflicted by Statute, there the averment should he contra formam Statuti: but, where the offence was felony at Common Law, but an Act ousts the offender of some benefit which the Common Law allowed him, as of benefit of clergy, the averment is unnecessary, because the Statute neither creates a new offence, nor adds a new penalty, and it cannot be said with propriety that the offence was committed contrary to the provisions of such an enactment. 1 Chitty’s Cr. Law, 289-290; 2 Hale’s P. C. 189; 1 Saunders, (by Williams,) 135, No. 3.
According to these principles, which are fully established by authority, this Case was decided. Horse stealing'was punishable like every other species of simple larceny,' at Common Law, with" death, but' the- benéfit-óf clergy-waSieitended to it. Afterwards, by' various Statutes in England, 'the benefit of clergy was taken away. These Statutes were in force in this country until the Revisal of 1793, when they were repealed, hut an Act of Assembly was then passed, making the same provision. *225Whilst that Law continued in force, itwas certainly unnecessary to aver in the Indictment that it was contra formam Statuti. When, hy the Act of 1796, the punishment of death was exchanged for a confinement in the Penitentiary-house, the same doctrine should prevail, because no change was made in the crime, nor any additional punishment inflicted: on the contrary, the severity of the former punishment was much mitigated.
Ibid. ch. 169, § 44, p. 611.