¶1The Court, upon the trial, (Thruston, J., absent,) at the motion of Mr. Key, the District Attorney, instructed the jury,
¶2“ That if they believe from the evidence, that Mary Ann Thomas, mentioned in the affidavit, was the child of Ann Alford, (the wife of the said Orral T. Thomas, and who after his death intermarried with one Alford) ; that said child was born about twelve months before her marriage with the said Orral T. Thomas ; that the said Thomas was not the father of the said child; but that after the marriage he adopted the said child, and allowed it to take his name, then such child, under the circumstances proved in this case, would not be entitled to claim a pension under the act of Congress.” (Qu. ? March 4,1814, [3 Stat. at Large, 103.]
¶3But the Court also instructed the jury, “ that the facts, that the said Orral T. Thomas married the mother of the said Mary Ann after her birth, and received and maintained the child as his own, and called her his child, and suffered her to call him father, and to be called by his name, if believed by the jury, were evidence, from which, if not contradicted by other evidence,'the jury may infer that she was begotten by the said Orral T. Thomas.”
¶4Mr. Key then prayed the Court to instruct the jury, “ that if the prisoners” (both affiants being upon their, trial,) “knew, or believed that the said Mary Ann Thomas was not begotten by the said Orral T. Thomas, then their affidavit iis false; and if they made the oath knowingly, and the affidavit was correctly read over to them, then such taking such oath is perjury.”
¶5But the Court refused to give the instruction.
¶6Verdict, not guilty.