majority">JUDGE, J.

It is contended for tbe prisoner, that be was a slave when tbe offense was committed, and that therefore be could not have been indicted under section 3142 of tbe Code, wbicb was never applicable to slaves. — Code, § 3305. It is not denied that slavery has bad no existence in tbis State, since tbe 22d day of September, 1865, on wbicb day tbe State convention, then assembled at tbe city *708of Montgomery, acted on the subject; but it is argued that it did exist in law, if not in fact, until that action was had. This position amounts to a denial of the legality of the destruction of slavery by the act of yar, a question it would be utterly vain and useless to discuss. It is a historical fact, that the consummation was effected by the act of war, anterior to the action of the State convention; and whether justly or unjustly, legally or illegally, are not now practical questions.

This was the view, in effect, taken by the State convention, in its action above referred to. That body was not guilty of the absurdity of abolishing slavery, which did not then exist; but it gave a high and solemn sanction to the truth of the fact, before well known, that the institution of slavery had “been destroyed in the State of Alabama,” by expressly so declaring, and prohibiting the existence of slavery in the State, in the future, except as a punishment for crime. — Ordinance No. 6, p. 45.

The prisoner having once been a slave, when did he become a freedman ? The offense was committed on the 16th day of September, 1865, long after the surrender of' all the Confederate forces, and the occupancy and control of the State by the army and navy of the United States, and subsequent to the issue of the proclamation of the provisional governor, on the 20th July, 1865. — Jeffries & Jeffries v. The State, decided at the present term. Therefore, at the time of its commission, he was not a slave, but a freedman ; and being at the time a freedman, he was rightfully indicted under section 3142 of the Code, which was applicable to him as such. — Eliza v. The State, decided at the present term.

There is no error in the record, and the judgment and entence af the court below must be affirmed.

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