12 Tex. 540 | Tex. | 1854
It will suffice for the disposition of this case, to notice briefly the principal grounds relied on for a reversal of the judgment as presented by the record, without dwelling to examine and discuss the various views of the questions in the case, which the very elaborate and ingenious argument of counsel for the appellant has presented.
It is objected to the judgment that the indictment, being in the common form for larceny, is not sufficiently descriptive of the facts necessary to constitute the larceny of a slave ; and it is insisted, that the Act of the 21st of December, 1836, having defined this offence and its punishment, an indictment cannot be maintained under the statute which prescribes the punishment for the larceny of goods and chatties ; but as the punishment prescribed for this particular offence, by the Act of 1836, was repealed by the Act of the 5th of February, 1840, and a different punishment substituted; and as the Legislature has máde no special provision for the punishment of this offence, it is dispunishable by law. This is understood to be the scope and purport of the argument. And if it were granted that the change of. the punishment prescribed by the Act of 1836, operated a repeal of the enactment, there would be more plausibility in the argument. But even then, it is conceived, this offence must have been held to be included under the general provision for the punishment of larceny, however incongruous the legislation on the subject may appear, or however inconsistent it may be thought to be with the actual intention of the Legislature to prescribe a less punishment for the larceny of a negro than for that of a sheep or a goat. For it is to the positive enactment that we are to
It remains to inquire whether the law affixes any punishment to the crime; and whether that punishment is confinement at hard labor in the penitentiary. The punishment, as we have seen, formerly was death. But by the Act of the 5th ef February, 1840, that penalty was taken away; and the punishment substituted in its place of “ thirty-nine lashes on the bare back and imprisonment ” not less than one nor more than five years. (Hart. Dig. Art. 2340.) And this penalty was again virtually repealed, or superceded by the Act of the 14th of March, 1848, Hart. Dig. p. 806, establishing a State penitentiary and substituting confinement therein with labor, for the odious, degrading and cruel punishment of stripes and branding with imprisonment in a county jail; and by the Act of the 20th of March thereafter, providing the punishment of all simple grand larceny not otherwise specially provided for— which the present undoubtedly is-—by confinement with labor in the penitentiary, not less than one, nor more than five years. (Hart. Dig. Art. 2344.) Under this provision the punishment was properly imposed in this case.
It is further objected that the Court erred in refusing to instruct the jury, in substance, that if the owner of the slave gave him his consent to go into the possession of the prisoner, and he did so with the knowledge and consent and by the direction of the owner ; and if when the prisoner was arrested,
Without attempting to solve the question by what means the jury were to institute the inquiry into the state and disposition of mind of the negro, so as to decide by whose “ controlling will” he was “impressed and influenced;” it will suffice to dispose of this objection, to say, that it is the intention of the thief, coupled with his acts, and evidenced by them, which must determine their quality and his criminality, and not the state of mind or intentions of the slave or his'owne$> "It will not be pretended that the owner of the negro intended that the theft should be consummated ; be intended only to detect and catch the thief, without affording him the opportunity to consummate his purpose. And the law, applicable to the case, is well illustrated by the following example: “If the “owner, in order to detect a number of men in the act “ of stealing, directs a servant to appear to encourage the “ design, and lead them on until the offence is complete, so “long as he did not induce the original intent, but only pro- “ vided for its discovery, after it was formed, the criminalty “ of the thieves will not be destroyed.” (3 Chit. Cr. L. 925 ; 4 Bl. Com. 230, note.)
The defendant did not except to any part of the.general charge of the Court; or ask instructions to supply its supposed imperfections in those matters in which he now complains of its deficiency. It is unnecessary to review the charge or to determine whether it is justly obnoxious to the criticism in which counsel, both for the accused and the State, have seen proper to indulge. It may be, (as it not unfrequently must be, in the necessary dispatch of business in the District Court, from the want of access to books, and time and opportunity for study and reflection,) that the charge of the Court is not framed with that entire and perfect accuracy and precision of language, which will render it impervious to the assaults of criticism. It may be that the Court has failed to give the most
There is no question presented by the record which is deemed to require notice. We think the verdict fully warranted by the evidence ; and the conviction legal and proper. The judgment is therefore affirmed.
Judgment affirmed.