IIITE S. THE STATE.

Abill of indi, tient must be preferred by the solicitor for the district, or in his absence by a solicitor pro tempore, appointed by the court, and it must, in some part of it le signed by him-otherwise it is defective, and a conviction foundel on such indictment must be set aside.

Before a court can appoint a solicitor pro tem, the regular solicitor must be absent, and this must le shown by t! e record.

An indictment or count signed by a solicitor pre 'em. &c. is a nullity unless the re cord shows the absence of the regular solicitor.

The record must show that the grand jury acted upon ard returned as a true bill the indictinent or count upon which the defendant was convicted, and a mere recital in an entry made afterwards rune pro tunc, is insafficient to slow this.

When a bill of indictment of one count is preferred and signed by the regular solici tor, and is found by the grand jury a true bill, and a solicitor pro tem. afterwards adds two additional counts charging distinct offences, which are not signed by him; a conviction upon one of the latter counts is erroneous.

By the common law the amendment of civil and criminal pleadings were placed on the same footing and a bill of indictment could only le amended in form by the court, and in criminal matters, nothing lut matters of form are cured by verdict.

To constitute the crime of larceny, there must be a trespass in the original taking of possession, the taking must Le invito domino, against the will of the owner, aud the property in his actual or constructive possession.

The possession by a slave of his master's property, is the possession of his master, The slave can acquire no right of property in possession--it is a naked charge, unaccompanied with a trust, and he cannot part with the possession legally, except in particular cases, when he is authorized as agent to do so.

A slave can give no consent by which the possession of his master's property may be transferred, for in point of law he has no possession in himself.

The consent of a slave to part with his master's property is a nullity, and if a person receives property from him, with the fraudulent and felonious intent, of converting it to his own use, he is guilty of larceny; it is taking from the possession of the owner and without his consent.

The record in this case shows that on the 24th of November, 1835, the grand jury returned into court a bill of indictment, charging the defendant with stealing a five dollar bank note, the property of John B. Hall, and Andrew J. Blackmore, traders and merchants, trading under the name and style of Hall, Blackmore, & Co. upon the back of which was indorsed "a true bill," and signed by the foreman.

This indictment was preferred by Andrew Hays, Esq. the silicitor for the seventh solicitorial district, and his name was signed thereto.

The next entry in the record is as follows: "And now,

to

March, 126.

V

wit, at December term, 1835, the grand jury again return NASHVILLE, into court and present an indictment with three counts against. Mansel Hite, for stealing bank notes-a true bill." The first count of this indictment was the original indictment first. found, with the name of Andrew Hays, the solicitor, thereto, and the return of the grand jury without any alteration; the second count charged the defendant with stealing a five dollar bank note, the property of Jesse Page and Jesse D. March. The third count charged him with stealing a five dollar bank note, the property of Jesse D. March. To these two latter counts, the name of neither the regular solicitor or solicitor pro tem. is appended, nor is the indorsement by the grand jury upon either.

The next entry in the record is as follows: "And now, to wit, 7th December, 1835, came John Trimble, Esq. attorney general pro tem for the 7th solicitorial district, and the said Mansel Hite, who stands indicted for stealing bank notes, was again called to the bar, and thereupon being arraigned, and on his arraignment pleads "not guilty," and for his trial puts himself upon the country, and the attorney general aforesaid doth likewise."

The jury were then sworn and empannelled, and on the 9th of December, returned their verdict, that the defendant was not guilty in manner and form as charged in the first and second counts of the indictment, but that he was guilty as charged in the third count.

On the 24th December, 1835, the defendant moved the court for a new trial, which after argument was overruled by the court, but another motion for a new trial, founded on several affidavits, was permitted to be entered by the court; pending which, and before the same was determined, the record shows the following entry, made on the 28th of December, 1835.

"In this case, on the 7th of December, 1835, John Trimble, the attorney pro tem. came into court, (the prisoner and his counsel, J. P. Grundy and E. H. Ewing, Esq. being at the bar,) and before the defendant pleaded moved the court for leave to amend the indictment, by inserting two additional counts, which he produced to the court, and the

March, 1836.

Hite
V

The State

NASHVILLE, Court having granted leave to make the amendment as asked, thereupon the indictment originally found, and the two counts were sent before the grand jury, and the grand jury having returned said indictment and amendment a true bill, the defendant pleaded thereto, "not guilty. And the clerk hav ing failed to enter said amendment at the time and of the day when said leave was given, it is therefore ordered by the court that the record in this cause be so amended, that said order and leave to amend be entered now, as of the day when said motion was made and said leave to amend was given."

On the 29th of December, the motion for a new trial was argued and was overruled by the court, and judgment pronounced upon the prisoner. No entry, other than what is before stated, appears in the record, to show the absence of the regular solicitor, and the appointment of one pro tempore.

One of the principal questions argued at the bar, was whether the facts proved in this case constituted the crime of larceny. This point is the last one examined by the court, and in its examination all the facts of the case are correctly detailed, it is therefore deemed unnecessary to again state them.

The court charged the jury, "That although the defendant may have obtained the letter containing the money, by a voluntary and unasked for delivery, yet if he broke open the letter and took part of the money out, and returned the residue, it would be larceny, and that, although he may have received the letter without any intention of taking the money, yet, if after he received it, he determined to take part of the money, and did take it, it would be larceny."

E. H. Ewing & J. P. Grundy, for the plaintiff in error.

Geo. S. Yerger, attorney general for the State.

TURLEY J. delivered the opinion of the court.

This record presents a piece of patch work and confusion. It shows that on the 24th day of November, 1835, Andrew Hays the attorney general for the 7th solicitorial district in the

March, 1836.

Hite

V

The State

State of Tennessee, preferred a bill of indictment against the NASHVILLE, prisoner for stealing three several bank notes of the denomination of five dollars each, the property of John B. Hall, Samuel Hall and Andrew J. Blackmore, merchants, trading under the name and style of Hall, Blackmore & Co., which was on the same day returned by the grand jury, with an indorsement thereon "a true bill," signed by their foreman. The next entry shows that the grand jury again returned into open court, and presented an indictment with three counts against the prisoner for stealing bank notes, "a true bill." This entry bears date 7th day of December, 1835. There is then recopied the same bill of indictment of one count, found on the 24th of November, and with the same indorsement, "a true bill," dated 24th November; then immediately follows what purports to be two other counts of said bill of indictment; the first of which, charges the prisoner with having stolen three other bank notes of the denomination of five dollars each, the property of John Page and J. D. March; and the second count with having stolen like other bank notes the property of Jesse D. March. These counts are not signed by the attorney general, neither does it appear what action, if any, was had upon them by the grand jury.

To this indictment, the prisoner pleaded not guilty; was put upon his trial and found guilty on the third count of the bill of indictment, that is, the second of the counts, which are not signed by an attorney general, and so far as can be legally seen, not acted upon by the grand jury. The date of this conviction is, December the 8th. On the 24th of the same month, the prisoner moved the court for a new trial, which was refused; afterwards, to wit: on the 28th, an entry is made, nunc pro tunc, which states, that on the 7th day of December, an attorney general pro tem. came into court and moved for leave to amend the indictment by inserting two additional counts, which was granted. In this entry, it is stated by way of recital, that the indictment filed on 24th day of November, and the two counts filed under the order of amendment on the 7th day of December, were sent to the grand jury, and by them returned a true bill. No part of the record shows, not even an amendment nunc pro tunc, that the attorney general was ab

March, 1836.

NASHVILLE, sent on the 7th of December, or that any person had been appointed pro tempore, to prosecute in his stead. Upon this record can the conviction and judgment against the prisoner be sustained? We think not, because,

Hite
V

The State

1st. The count in the indictment upon which the prisoner was convicted, was not preferred by the attorney general of the district, but by one purporting to have been appointed pro tem. by the court. Before the court can appoint an attorney general pro tempore, the record must show, that the officer appointed by the state is absent. This is not done, therefore

the count on which the verdict is predicated is a nullity.

We

We

2nd. The count upon which the prisoner stands convicted is not signed by an attorney general, nor does it appear from the record, except by recital in the nunc pro tunc entry, that it was acted on by the grand jury. In the case of Fout vs. State of Tennessee, 3 Hay. 98: it is expressly determined that no bill of indictment should be sent to the grand jury without the sanction and approbation of the attorney general, proved by his signature on some part of the indictment. not only admit the authority, but concur in the opinion. do not say that it is absolutely necessary, that his signature should be at the conclusion of the bill, but it must be on it, and must show that it is intended to cover all the counts contained therein. Is this done in this? surely not. The bill of indictment found by the jury was filed by the attorney general, Hays, on the 24th November: what is called the two last counts, were filed by an attorney general pro tem. under an order for an amendment. It cannot be argued that these counts are filed and prosecuted with the sanction and approbation of the attorney general Hays, for he was absent. They were in fact filed by an attorney general pro tempore; where is his signature as evidence of his sanction and approbation thereof; no where. But it is argued, that these counts were filed as an amendment to the original bill, that the three constitute but one indictment, and that the signature of Hays to the bill filed by him, may be refered to the two counts filed by the attor ney general pro tempore. We do not think so. The two last counts contain distinct and separate offences from that charged in the first, and having no connection therewith so far

3