Appeal from, Washington Circuit Court.

The indictment was as follows :

“ State of Missouri, County of Crawford. — In the Crawford Circuit Court, June Term, A. D. 1859.

“The grand jurors for the State of Missouri, einpannelled, sworn and charged to inquire within and for the body of the County of Crawford, upon their oath present, that a certain slave named Garrison, the property of one James H. Montery, on the first day of January, in the year A. D. 1859, in the county aforesaid, did then and there unlawfully steal, take and carry away a certain sack of wheat, containing two bushels, of the value of two dollars, the property of one James H. Montery, contrary to the statute in such case made and provided, and against the peace and dignity of the State ; and the jurors aforesaid, upon their oath aforesaid, do further present that one G. T. Edwards, late of the county aforesaid, on the day and year aforesaid, in the county aforesaid, the sack of wheat aforesaid, containing two bushels as aforesaid, of the value aforesaid, so as aforesaid unlawfully stolen, taken and carried away unlawfully, did receive and have, he, the said G. T. Edwards, well knowing the said sack of wheat to have been unlawfully stolen, taken and carried away contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.”

I. It has not been clearly proved to whom the wheat in controversy belonged, and to convict, it must be proved to be the property of the person alleged in the indictment to be the owner thereof, James H. Montery.

II. The revised statute of 1855, § 48, on which the indictment is produced, does not refer to this class of cases mentioned in the indictment, such as buying of or receiving property alleged to be stolen by slaves, for there is a special statute (p. 1477, § 33) that refers to such cases as buying and receiving of property from slaves. ‘ '

And this is very apparent, for the reason that slaves are not presumed to own property, and the Legislature has provided the punishment for buying of or in anywise trading with slaves. (R. C. 1855, p. 1477, § 33.) The punishment, both civil and criminal, is therefore by statute.

The indictment in this case should have been predicated upon sec. 33, art. 1, of “An act concerning slaves,” p. 1477. If defendant is guilty of any offence, he is guilty under the last mentioned act concerning slaves.

I. The indictment alleges the sack and wheat to be the property of James H. Montery. It is not a defect which tends to the prejudice of the substantial rights of the defendant, upon the merits. (R. C. 1855, p. 1177.)

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