Cook v. State

26 Ga. 593 | Ga. | 1858

By the Court.

Benning J.

delivering the opinon.

All the questions in the case, are contained in the motion for a new trial, and, in the motion in arrest of judgment. I shall confine myself, therefore, to those two motions.

I proceed first to the motion for a new trial.

The first three grounds of that motion, raise this question — did the Court below err, in refusing the motion for a continuance ?

The grounds of the motion for a continuance, were three; 1st. The'absence of the witness, Mary Cook; 2d. The absence of the witness, Wm. Lewis; 3d. excitement in the public mind, against the accused.

[1.] Mary Cook appeared before the accused had commenced to give his evidence to the jury, and she was examined by him. Therefore, there is nothing in the first ground.

The fact which the accused expected to prove by William Lewis, was, that he, the accused, owned only one pistol, and that, at the time of his arrest, Lewis was in possession of this. And he wished to prove this fact, to contradict two of the State’s witnesses, who had testified at the committing trial, that he, when arrested', was armed with a pistol.

[2,] But the State did not on this, the trial before the jury, draw any such evidence from these two witnesses, or from either of them. And, therefore, if Lewis had been present at it, ho could not have been examined on the point. His absence, then, as things turned out, was of no consequence to the accused.

The third ground was excitement in the public mind, against the accused.

He states no particulars in support of this ground ; he merely gives what must be his own mere opinion on the subject; and he does this without giving his reasons for that opinion ; and he fails to present any corroborating opinion from others.

The offence was, in grade, one of no great enormity — 'harboring a slave; nor was it attended by any circumstances of extraordinary atrocity.

There was, then, ground for a strong presumption, that the accused was mistaken in his opinion as to the excitement against him, in the public mind.

[3.] This presumption being opposed to the vague opinion of the accused, we think, that the Court was justified in acting on it, rather than on the opinion, and, therefore, was justified in holding this third ground of the showing, insufficient.

Such a ground must, from its nature, in almost every case, expect to encounter more or less of distrust and suspicion. It was not the only ground in Howell’s case, 5 Ga.

The fourth ground was, that no copy of the indictment and no list of the witnesses who had testified before the grand jury, had been furnished to him before his arraignment.

But, nevertheless, he pleaded, not guilty. And his doing so is evidence, that he did not need such copy and list, for any purpose of his defence; and, therefore, is evidence from which, it was to be implied, that he had waived them. He was not bound to plead at all till he had been furnished with them. He might have ojected to being arraigned.

[4.] Therefore, we think this fourth ground also insufficient.

The fifth ground is the same in substance as the fourth.

The sixth occurs again, in the motion in arrest of judgment, and it will be there considered.

The seventh is the same in principle as the fourth.

The eighth has already been decided, in the decision of the first ground of the motion for a continuance. It does not appear, that Cook lost anything by the fact, that the witness, Mary Cook, was not present at the beginning of the trial; and unless it appeared that he thereby lost something, it is to be presumed, that he lost nothing. Mary Cook was present by the time she was needed as a witness.

The ninth ground has been already decided, viz., in the decision of the second of the grounds in the motion for a continuance.

The tenth ground is, that the Court erred in receiving the verdict, and in allowing it to be amended.

The verdict, as first returned, was in these words; “We, the jury, find the defendant guilty of concealing and employing.”

The Solicitor General moved to amend this verdict by adding to it, the words; “ the negro to the injuiy of the owner.” The Court, on the jurors all answering, that this was what they intended, allowed the amendment to be made.

[5.] We see nothing wrong here. If the verdict was not full when returned, it was the duty of the Court not to receive it, but to require it to be made full. And the Court here, did no more than this. The amending was, really, the act of the jury, not of the Court. Indeed, we incline to think, that all that was expressed in the verdict after the amendment, was implied in it before the amendment.

The eleventh ground is, that “the verdict does not find the defendant guilty of any crime.”

The verdict was, that the defendant was “guilty of concealing and employing the negro, to the injury of the owner.”

[6.] The charge in the indictment was, that Cook “did conceal, harbor, hide and employ” the negro. The verdict contains nothing expressed, about harboring or hiding. But it says, that he concealed the negro. And we think, that to conceal a negro, is to hide and to harbor the negro. To conceal a negro, evidently is, to hide him; and' it is also, to harbor him. It may be true, that there can be cases of harboring, that will not be cases of concealing. If one even openly and publicly protects a slave from his owner, the case will, perhaps, be a case of harboring. But it is likewise true, that there can be no case of concealing, that will not also be a case of harboring. To conceal then, is both to harbor and to hide. It follows, that the verdict, in finding Cook guilty of concealing and employing, found. him guilty of harboring, hiding, concealing and employing. And that was the charge against him.

This eleventh ground is, therefore, not true.

The twelfth ground is but the eleventh, expressed in another form]

So is the thirteenth.

• The fourteenth ground is, that the verdict was contrary to law, and was without sufficient evidence to support it.

We think differently. We let the evidence speak for itself.

The fifteenth and last ground, is, newly discovered evidence ; viz., evidence going to show, that Nelson, one of the witnesses examined by the State, was to be a gainer by the conviction of Cook.

From what took place for and against this ground, the following particulars appeared, viz., that Rogers, the owner of the runaway slave, had offered a reward for him in the newspapers, the offer being to this effect — that he would give ten dollars for the delivery of the slave to him, and “fifty dollars, if found in the possession of any white man who” was “attempting to make off with him, with sufficient proofs to convict any such person or persons of the same;” that Nelson knew of this offered reward, and thought himself entitled to it; and that Rogers intended to recognize his claim to it, if made; that Mr. Bell, one of the counsel for Cook, knew of the offered reward, he having been called upon, to decide a question connected with the reward.

It is thus seen, that- what turned out to be the fact, was really, not a newly discovered matter; Cook’s counsel knew of the existence of the public advertisement, and he ought, in common diligence, to have assumed, that the witnesses would also know of it, and so he ought, on the trial, to have been prepared to bring out the existence of the advertisement and their knowledge of it.

Again, the terms of the offer, are — “if found in the possession of any white man who is attempting to make off with him, with sufficient proofs, to convict any such person or persons of .the same.” But the charge against Cook was, not for making off with the slave, but, for harboring him. So, strictly speaking, no witness could, on this charge, be entitled to the reward.

Lastly, we think, that if Nelson’s evidence was struck out, the rest of the evidence would be sufficient to support the ver- ■ diet.

We think, then, that this fifteenth ground was insufficient.

And so, we think,that the Court below was right, in overruling the motion for a new trial.

1 proceed to the motion in arrest of judgment.

The second ground in that motion is but the first unfolded. So I pass to that second ground. It is, that the indictment does not charge, that Cook did not have an apparent well founded claim, to the slave, and does not charge, that Cook had not been peaceably possessed of him for twelve months next preceding the commencement of the harboring, &c.

The law on which this ground is put, is as follows: “Any person who shall conceal, harbor, hide or employ, in their own, or in the service of any other person or persons, any slave to the injury of the owner thereof, shall be guilty of a high misdemeanor, and on conviction thereof, shall be punished by imprisonment and labor in the penitentiary of this State, for a time not exceeding three years nor less than one year, at the discretion of the Court. Provided nevertheless, that on- the trial of this offence, the person charged with it, shall be acquitted, if he or she had an apparent well founded claim, to the slave, so harbored or concealed, and had been peaceably possessed of him twelve months next preceding the commencement of such harboring or concealing.” Cobb Dig., 830-826..

The question is, was it necessary for the indictment to have negatived this proviso ?

And we think that it was not. The part of this law preceding the proviso, made harboring, &c., to the injury, &c., a complete crime, with a punishment annexed. And what the proviso says, is matter to show, not, that harboring a man’s slave in any case, is innocent, but, that in some cases it may be excused ox pardoned. The proviso refers to matter which, if it exists, may be offered in excuse of the crime It is a crime in every case to harbor another man’s slave— so says the first part of the law. But in some cases, there may be things which shall excuse this crime. So says the second part of the law — the proviso.

In this respect, the case differs from the case of Elkins vs. State, in the 13 Ga. R., 435, a case founded on the law against retailing spirits without a license. That law does not make all acts of retailing without a license, a crime, but only those that may be done outside of “ corporate towns.”

But even were there no difference between the two cases, I should still myself, consider the indictment in the present case, sufficient. The indictment certainly “states the of-fence,” “so plainly that the nature of the.offence charged,” might have been “easily understood by the jury,” and when that is so, the Code says, that the indictment is to be “deemed sufficiently technical and correct.” Cobb Dig., 833.

[7.] "We think, then, that this ground was not sufficient, to require the judgment to be arrested.

The other grounds in the motion to arrest the judgment, are the same as some of those taken in the motion for a new trial. They, therefore, have already been considered.

Our conclusion, then, is, that the Court below was also right, in overruling the motion in arrest of judgment.

So the judgment of the Court must be affirmed — generally.

Judgment affirmed.