10 Ga. 511 | Ga. | 1851
delivering the opinion.
This is an indictment which copies before us upon a writ of error from a judgment rendered in the'Superior Court of Floyd’ County. On the plea of not guilty, the defendant, James Berry, was convicted by a verdict of the' Jury. ‘ The charge was for stealing from the dwelling house of William Montgomery, two thousand dollars in gold and silver coin, five thousand dollars in bank bills, and three thousand dollars in promissory notes, all of the value of ten thousand dollars, the same being the property of one William Montgomery.
Counsel for the defendant moved, in arrest of judgment, and assigned as reasons,
First. Because the prisoner is indicted as principal, without stating in what degree. > .
The offence charged in the indictment constitutes the defendant a principal in the first degree. He is accused of being the actor or absolute perpetrator of the crime; if it had been intended to criminate him as principal in the second degree, the indictment would have charged, not that he stole the money and chattels, but that he was present, aiding and abetting the fact to be done; the indictment therefore is not only sufficiently technichal and correct, but it is in the very language and terms of the Code.
Nor is it necessary that it should, where, as in this case, the stealing was consummated. Larceny from the house is defined to be, either the breaking or entering any house with an intent to steal, or after breaking or entering said house, stealing therefrom any money or thing of value. (New Digest, 794.) One may be guilty of this crime then, wfieré the original entry was not felonious or with an intent to steal. Could the Jury who tried the case fail to comprehend readily the nature of the offence intended to be charged? If so, the indictment is sufficient. Studstill vs. The State, 7 Geo. R. 2.
It charges the prisoner after having feloniously entered the dwelling house of the prosecutor by night, with having “ feloniously and privately taken and carried away” the money and notes specified in the indictment, “with intent to steal the same. The allegation could not have been more full and explicit.
■Fourthly. Because the indictment charges no facts which make the prisoner principal in the second degree.
If the facts which transpired in this case had occurred between the defendant and a free white citizen, Berry would have been guilty as principal in the second degree" only, and the indictment shouldhave been found accordingly; but the designhere is to charge Berry himself as guilty of the offence, because perpetrated by a negro through his procurement. The law institutes him in the place of the slave, and treats him as the actor or principal in the first degree. The same division of the Penal Code contains an analogous provision as to offences committed by infants under the age of ten years, by the influence of adults. New Digest 779, §7.
It is not necessary that it should be more particular in the description. In ninety-nine cases out of a hundred which occur, it is impossible to ascertain the precise coins or bills stolen. If a particular description was required to be given in the indictment, the proof must correspond and be equally definite. To hold this,, we might as well say at once that all thieves shall go
It is our opinion then, that the Court was right in overruling the motion to arrest the judgment.
The defendant then by his counsel, moved for a new-trial, on the following grounds, to wit:
It is conceded, that by the Common Law of this State, (there being no statutory enactment upon this subject in Georgia,) a negro has never been permitted to give evidence in any case, where the rights of a white person were concerned. And when we consider the degraded state in which they are placed by the laws, and'the mental, as well as moral ignorance in which most of them are reared, not to advert to other reasons for excluding their testimony, it would be most unreasonable, as well as impolitic, to admit them as witnesses.
But the question here is, did the Court below err in refusing, under the factsof the case, to exclude the statements of Phill ? We are clear that it did not. It is immaterial from what source, or under what circumstances the accusation was made, whether by a negro or a white man; whether it was voluntary or induced by the flattery of hope, or the pain of punishment; whether it came from a talking ass, or a talking snake, a stock,
Suppose the defendant, instead of manifesting the emotion he exhibited when accused by Phill, and stating that he saw from the negro’s countenance that he intended to criminate him, a self-accusation, indicative of conscious guilt, I repeat, instead of this agitation and self-condemnation, he had replied, “well, I confess the fact, but I will visit upon you the vengeance which I threatened in case you betrayed me,” and with the knife which he held in his hands as he stood confronting the negro, while he was making this disclosure, he had made an effort to take his life, would any one doubt the admissibility of the charge accompanied with the confession which it elicited ? Surely not. The objection then, is obviously to the weight of the evidence which is referable alone to the Jury, and not to its legality which is determinable by the Court.
Reject this testimony and several of our most important Penal Enactments become a dead letter. Conversations are overheard between a slave and a white man, in which a plot is laid for stealing, harboring or carrying off a slave, to a free State; is it not competent to give evidence of what was said by both of the speakers ? We have a stringent Statute against trading with slaves. The owner of a slave loses a bale of cotton or some other article of value, suspecting that' it has been sold to some one in the neighborhood, he causes his negro to be closely watched; and he is overheard a few nights thereafter, demanding payment of the purchaser, who acknowledges the liability and discharges it. Is it possihle that the guilt of the offender could not be established upon evidence like this ?
So with regard to gambling with slaves, selling or furnishing them with spirituous liquors, and all other offences in which, our slave population are joint ' participates. If I could find no precedent recognizing the propriety of such a rule, I should not hesitate to make one, from the absolute and indispensible necessity of the case. I have been so fortunate, however, as to lay my hand upon a direct authority upon this point.
The evidence was received on the trial, and from this judgment of the Circuit Court the defendant appealed, and assigned for error the admission of this testimony.
The Supreme Court say, “ That negroes cannot testify against white persons, is clear.” (The Circuit Judge was very explicit in so instructing the Jury, in the present case.) “ But this rule cannot be carried so far as to exclude the conversation of a negro with a white person, when the conversation on the part of the negro is merely given in evidence, as an inducement and illustration of what was saidjby the white person. If the conversation of the negro had been proved by herself, then it would clearly have been illegal. Here the State proved by competent witnesses, that certain remarks were made to the plaintiff in error, in order to show what her reply was. It is a matter of indifference by whom they were made. It is a fact which may be proved, like any other fact in the case.”
It is due to the presiding Judge, to mention that he states in the bill of exceptions, that the irregularity complained of, escaped his notice, and that in his general charge to the Jury, he instructed them expressly to disregard any and all statements made by counsel, which were not supported by the evidence.
That the practice complained of is highly reprehensible, no one can doubt. It ought in every instance to be promptly repressed. For counsel to undertake by a side wind, to get that in as proof which is merely conjecture, and thus to work a prejudice in the mind of the Jury, cannot be tolerated. Nor ought the presiding Judge to wait until he is called on to interpose. For it is usually better to trust to the discrimination of the Jury as to what is, and what is not, in evidence, than for the opposite counsel to move in the matter. For what practitioner has not regretted his untoward interference, when the counsel thus interrupted, resumes, “ yes, gentlemen, I have touched a tender spot, the galled jade will wince ; you see where the shoe pinches.”
Is it, I ask, worthy of the noblest of professions thus to sport with the life, liberty, and fortune of the citizen ? A profession which is the great repository of the first talents in the country, and to whose standard the most gifted habitually flock, as offering the highest inducements of reputation, wealth, influence, authority and power, which the community can bestow.
I would be the last man living, to seek to abridge freedom of speech, and no one witnesses with more unfeigned pride and pleasure than myself, the effusions of forensic eloquence, daily exhibited in our Courts of Justice. Forthe display of intellectual power, our bar speeches are equalled by few, surpassed by none. Why, then, resort to such a subterfuge ? Does not history, ancient and modem — nature, art, science and philosophy— the moral, political, financial, commercial and legal — all open to counsel, their rich and inexhaustible treasures, for illustration ?
Thirdly. Another ground occupied in the motion for a new trial was, because the verdict of the Jury was contrary to law and the charge of the Court.
The entire charge of the Court, not having been incorporated in the record, we have no means of ascertaining certainly whether the verdict was contrary to the charge or not. So much of it as is given, is not in conflict with the verdict of the Jury.
In addition to the conduct and response of Berry, whqn accused by Phil, he refused to have his foot measured to see whether it corresponded with the tracks which were made, saying “ it was enough to make a white man’s blood boil, to measure his foot;” notwithstanding all the rest of the company present had promptly submitted to the proceeding. He maintained the innocence of his man Tom, exhorting him to tell all he knew, but declaring at the same time, in the hearing of the boy, that he knew nothing about the matter; for that he saw him working in his patch, a distance of from one hundred and fifty to two hundred yards from Berry’s house, at 11 o’clock on the night when the things were stolen; whereas every circumstance pointed to Tom as the coadjutor of Phil, in conveying the trunk to the lane, where it was plundered of its contents. Again, he assigned a
Besides all this, the witnesses traced the tracks of a horse and mule, to where they had been tied in the woods about twro hundred yards from the road where the trunk had been found. The horse was shod, and upon being measured, the tracks fitted the feet of Berry’s horse and mule. So also, did the black hair which had been rubbed off on a shrub where the horse was fastened, correspond in color with that of the horse.
It cannot, therefore, with any propriety be affirmed, that the verdict of the Jury was without evidence. As to its sufficiency, it does not become us to express our opinion. The rule is well settled, that the Jury alone have the power to determine upon the force and effect of the circumstances proved, and whether they are sufficient and satisfactory to warrant them in finding the defendant guilty or not. 1 Phil. Ev. 156. 2 H. Black. R. 297. 6 Peters’ R. 598. 2 Stark, on Ev. 681, to 683.
Ordinarily, it is the duty of the Court to keep the Jury together in a criminal case, from the time it is submitted to them, until they are finally discharged from its consideration. And no application should be addressed by the Court to counsel, to allow
And it is the less necessary since the passage of the Statute allowing the Jury to be furnished at their room with all proper refreshments and comforts, during their deliberations.
And although the separation in this case was by the authority of the Court, and upon the consent of counsel, yet, if the defendant could have shown that any improper communication had taken place between any of the Jury and other persons during their dispersion, we should have held it good cause for awarding a new trial. He made no such attempt, neither wras there any misconduct imputed to the Jury while they were separated.
This is virtually the same point as that taken in the fifth and last ground of the motion to arrest the judgment.
If the charge in the indictment that the defendant stole gold and silver coin of the value of two thousand dollars, and bank notes of the value of five thousand dollars, &c. is from the necessity of the case all the allegation of property and value that the law requires, as we hold that it is, then the evidence need not be more particular. It is not necessary to prove that so much of the coin were Washingtons or eagles, or half eagles, or Spanish milled dollars, or American half dollars, or that the bank
A gentleman recently died in this State with upwards of seventy thousand dollars of cash in his house, all of which, except about eight thousand dollars, was in specie; and among the rest, several half bushels of dimes. How impossible for the owner who was years in hoarding up this treasure, much more so for his representative, to have alleged and proved each particular piece of money or paper, had the box or boxes which contained it been stolen.
William Montgomery testified that on the night of the 17th April, 1850, his house was opened and a large trunk taken out from the room where he usually slept, and where his wife was sleeping at the time — he having occupied another apartment in the same dwelling that night on account of the sickness of his wife; that the trank contained between seven and ten thousand dollars in money- — -two thousand in gold and silver and upwards of five thousand in bank notes, besides promissory notes amounting to between three and four thousand dollars; that the trunk was taken two or three hundred yards from the house, broken open and rifled of its contents.
This extract from the testimony of the prosecutor, is the only reply 'which we deem it necessary to make to this objection.
Eighthly. Because proof that a trunk was taken and carried away, in which there wms money and divers other things, does not sustain an allegation of taking and carrying away money.
The testimony shows that the trunk and the title deeds to property were left, while the money wras abstracted and carried off: and this establishes the quo animo with which the trunk wras taken- — that it w*as ab initio, the kernel the rogue was after, and not the shell.
The witness, Samuel Stewart, had been employed by the prosecutor, to pretend friendship and proffer assistance to Berry, and
Applications for new trials on account of newly discovered evidence, are not favored by the Courts. In South Carolina it has been repeatedly held, that new trials.will not be granted on this ground alone. Buchanan vs. Carolin, 1 Brevard, 185. Faver vs. Baldwick, 3 Brevard, 350. Evans vs. Rogers, 2 N. & M. 563. State vs. Harding, 2 Bay. 267.
Upon the following points there seems to be a pretty general concurrence of authority, viz : that it is incumbent on a party who asks for a new trial, on the ground of newly discovered evidence, to satisfy the Court, 1st. That the evidence has come to his knowledge since the trial. 2d. That it was not owing to the want of due diligence that it did not come sooner. 3d. That it is so material that it would probably produce a different verdict, if the new trial were granted. 4th. That it is not cumulative only — viz; speaking to facts, in relation to which there was evidence on the trial. 5th. That the affidavit of the witness himself should be produced, or its absence accounted for. And 6th, a new trial will not be granted, if the only object of the testimony is to impeach the character or credit of a witness. The Commonwealth vs. Murray, 2 Ashmead, 41. The Commonwealth vs. Williams, Ibid, 69. Smith vs. Matthews, 6 Miss. R. 600. Robins vs. Fowler, 2 Pike, 133. Glover vs. Woolsey, Dud. Geo. R. 85. Middleton vs. Adams, 13 Vermont, 285. McIntire vs. Young, 6 Black. 496. Harbour vs. Rayburn, 7 Yerg. 432. Cosart vs. Lisle, 1 Meigs, 65. Mechanic’s Fire Ins. Co. vs. Nichols, 1 How. 410. Hinds vs. Terry, Walker, 80. Kirby vs. Walford, 14 Vermont, 414. Comming vs. Walden, 4 Black.
Tried by these tests, this showing is strikingly deficient in' several important particulars. It does not appear from the affidavits accompanying this motion, that the materiality of Stewart’s testimony came to the knowledge of the defendant since the trial. ' He does not so swear, and from the statement of Dr. Dickerson, that the facts which it is proposed to prove by the witness, were imparted to him “ long before the trial,” we may infer that Mr. Berry was in possession of them previous thereto. It is enough at least, that he does not negative this hypothesis. It should appear affirmatively that he has not.
But is the testimony material? Would it be likely to change the verdict which has been rendered ? In the first place, we are inclined to think it would be inadmissible if offered. It establishes nothing. The witness would swear, that notwithstanding he sought and obtained opportunities favorable for that purpose, yet, he neither saw nor heard any thing calculated to criminate Berry. Testimony like this, would not weigh a feather, even if it were competent.
In the next place, why was not the affidavit of Stewart himself produced ? Dr. Dickerson states, it is true, that at the time his deposition was taken, Stewart was sick of fever. Does this fact sufficiently account for its absence, or excuse its non-production ? One may be sick of a fever, and yet abundantly able to qualify to a deposition. He resided in the place where the trial took place, and the record does not show that he was too unwell at all times thereafter, to give his affidavit.
During the progress of the trial, John Sale was sworn as a witness in behalf of the State. He testified, that he had had several conversations with Berry, respecting this theft. In one
Counselforthe defendant objected to the opinion or belief of the witness. The objection was overruled, and the testimony allowed. Which decision was excepted to, and the same is now assigned as error.
In Gentry vs. Polly McMinnis, (Ibid, 383,) the question was one of freedom or slavery. In the course of the trial, the iden
In Griffin vs. Brown, (2 Pick. R. 303,) the question of insolvency arose collaterally, and a deponent stated, that from his knowledge of the debtor’s circumstances, he was able to pay a debt of a certain amount; that during a certain period after his escape from Massachusetts to New York, he must have spent a very large amount of money — from 800 to 1000 dollars — as the deponent verily believed. It was held that this testimony was admissible, not being opinion merely, but reasons given! for a fact stated by the deponent.
In Mahony vs. Ashton, (4 Harris & McH. 63,) the deposition of John Wheat was rejected, because the same contained the opinion merely of the witness, uncoupled with the facts from whence his conclusions were drawn, or opinion formed.
In Morse vs. The State, (6 Con. R. 9,) the point in controversy was as to the age of one VanGrandt. William Oaks stated, that he should think from his appearnce that he was a minor between the age of fourteen and seventeen years. Upon writ of error, the Supreme Court of Connecticut held, that the testimony of Oaks was inadmissible. “ It was,” says Hosmer, Chief Justice, “ opinions entirely abstracted from fact. Had the witness testified to the facts indicative of Van Grandt’s age, and accompanied them with his belief or opinion, I should have considered the testimony competent.”
In Burt vs. Garvin, (4 Harr. & Johns. 507,) a part of the testimony of Dorsey, the witness, was, that the sum of $ 150 retained by Wallis, as he (witness) “ understood and presumed,” was about the sum intended to be charged for discount upon the said note: Held, that the expression, as he (witness) “ understood and presumed,” taken alone and unconnected wdth other words used by him, imparted his opinion merely, and were in themselves in
It would seem, then, that while with a few excepted cases, themere opinion of the witness, unaccompanied with the facts upon which it is founded, is inadmissible evidence, that in a great variety of other cases it is not illegal to admit it, provided it be coupled with the facts upon which it is founded; and in no case do I find'the testimony rejected, provided the deposition sets forth the facts from which the opinion is deduced.
Under these circumstances, is it possible to draw a line of demarcation ? To state definitely in what cases the belief of the witness may be expressed, and when it must be excluded ?
Applied to the case at bar, this rule would of course exclude that portion of the testimony of Mr. Tate, which was objected to. But it is not a matter of sufficient importance to justify us in setting aside the verdict. It could not change the complexion of the case. Nor do I feel authorized to apply this test, until it has received the sanction of a majority, at least, of the Court, if it ever shall.
A new trial must be denied.