It is only upon a second .con, viction of the offence stated in the indictment, that the punishment of death is annexed to it; and it is consequent-ly triable in the County Court, according to the act of 1793, eh. 381. The Superior Courts obtain jurisdiction under the act of 1816, only where the offence is so charged as to appear upon the face of the indictment tó be punishable with death. It would be vain to try the prisoner first and then to consider whether he was liable to punishment. This was settled in the State v. Adam at the *618last term. The Court acted correctly in refusing to put the prisoners to answer the charge.

By the Court, Judgment aeeirmed.