25 Ala. 221 | Ala. | 1854
The appellant sued the defendant, Hawthorn, for an assault and battery, and false imprisonment. The defendant pleaded the general issue, and two special pleas, which are substantially the same, and in which he avers that the injury complained of consists in the arrest of the plaintiff under and by virtue of a warrant issued by a justice of the peace, on the affidavit of the defendant, that he had just reason to believe, and did believe, that the said plaintiff “was about to persuade, and trying to persuade, two of his (defendant’s) hired negroes to leave the said Hawthorn’s premises.” The pleas contain the usual specific averments, as to the identity of the supposed trespasses, and that no other or further force was employed, than such as was necessary to arrest and bring the said plaintiff before the justice for examination, touching the offence set forth in the affidavit. These special pleas were demurred to, and the court held them good. The overruling of the demurrers presents the sufficiency of the pleas as the only question for our consideration.
It is argued for the appellant, that the action of trespass may well be sustained for this arrest, because the proceeding before the justice was not for any offence known to the criminal law of the State, and was consequently coram nonjudice, and void. On the other hand, it is insisted that the affidavit substantially states that the plaintiff attempted to commit either a felony or misdemeanor, and that such attempt is itself an indictable offence, whether the felony or misdemeanor be created by statute or exists at common law.
In preliminary proceedings of this nature, which are usually had before justices of the peace, technical accuracy cannot be expected, and is not required. It is sufficient, if, giving to the language employed its. ordinary signification, the court may gather from it, that an offence against the criminal law has been committed or attempted. If such proceedings were to be subjected to the rigid rules of criticism, and all the constituent elements of the offence sought to be investigated, were required to be set forth in the affidavit or warrant with certainty, the administration of the criminal law would be greatly embarrassed, and offenders would often go unpunished, by reason of the hazard which the justice who issues, the party who procures, and the officer who executes the process for ■ arresting them, would incur. We must be content to gather the meaning of the party from the affidavit, and disregard the want of technical accuracy of description. Bennett v. Black, 1 Stew. 39; 5 S. & P. 361; Ewing v. Sanford, 19 Ala. 605. Thus construed, we are of opinion that the affidavit, or information, was substantially sufficient to justify the warrant. To persuade the slave to leave, is “ to aid him to departfor, by the term “ aid,” is comprehended all those appliances which may be resorted to as means to induce or assist a slave in running away. And, although persuading him to leave his master’s premises is not technically the same as inducing him to quit his service, as he may leave his premises and still remain in his service, yet, as the expression is understood in common parlance, we understand it to mean, that Crosby was trying to persuade the slave to throw off the master’s dominion and authority, by abandoning his premises, thus “ departing from his service.” This description of the offence, we concede, would be insufficient in an indictment; but, in respect to such preliminary proceedings, as we have said, a greater latitude of construction
That the attempt to commit a felony is an indictable of-fence, although the felony is not committed, is too well settled by the authorities to require argument; and the more modern cases concur in holding, that the soliciting or persuading another to commit a felony, nay, even a misdemeanor, is itself a misdemeanor. — See the cases collated in The King v. Higgins, 2 East 5; see, also, The King v. Phillips, 6 East 464, where it was held a misdemeanor to endeavor to provoke another to send a challenge to fight. In The Commonwealth v. Reuben Harrington, 3 Pick. 26, it was held, that letting a house to a woman of ill fame, knowing her to be such, with the intent that it should be used for purposes of prostitution, was an indictable offence at common law ; and the doctrine was there asserted, that inciting, encouraging, and aiding a person to commit a misdemeanor, is itself a misdemeanor.— See, also, cases cited on the brief of appellee’s counsel.
Upon the whole, we are of opinion that the warrant was not void, but the arrest was under valid process; and the action of trespass does not lie for the injury, conceding, as the demurrer does, the truth of the pleas.
It follows that the court committed no error in overruling the demurrers, and the judgment is consequently affirmed.
My opinion is, that the word “ aid ” in the statute (Clay’s Dig. 419, § 16) is not used technically, but as the synonyme of “assist”; and that under the strict rules of construction applicable to penal statutes, we are not authorized to extend the meaning of tho v ords beyond their ordinary and usual signification, in order to reach what we suppose to be the mischief of the statute. The term “ aid,” or “assistance,” is, in its common acceptation, very different from “persuasion”; and although statutes against assisting prisoners to escape are found in England, as well as almost every State in the Union, we have been cited to no case, and have not been able to find any, in which persuasion has been held to be ’assistance within the meaning of these statutes. A convincing argument, to my mind, that the Legislature did not intend to use it in that sense, is, that in the next section
Entertaining these views, I agree, that, in proceedings had before a justice of the peace, preliminary to the issue of a warrant for a public offence, technical accuracy is not required, and that it is enough if, giving to the language employed its usual and ordinary signification, it appears that an offence has been committed; but I do not agree that the words used would fairly imply the commission of the offence contemplated by the statute.
CHILTON, C. J.- — -The majority of the court readily concede that penal statutes are to be strictly construed, and cannot be extended by construction; for the law does not allow of constructive offences, or of arbitrary punishment. Hence the act which subjects a man to a punishment, must be within the letter arid spirit of the statute which imposes the penalty. — Smith’s Com. 861. But, although penal statutes are to be construed strictly, in the language of Marshall, C. J., in The United States v. Wilterberger, 5 Wheat. 76, “they are not to be construed so strictly as to defeat the obvious intent of the Legislature.” .This intention, he adds, “is to be collected from the words they (the Legislature).use.” — See, also, 2 Peters 358; 2 Mass. 144; Paine’s R. 209. A few examples from adjudged cases may serve to illustrate this position:
In the United States v. Morris, 14 Peters 464, by an act of Congress, (10th May, 1800,) it was made an indictable offence for any citizen of this country to serve on board of
So, also, in Commonweath v. Loring, 8 Pick. 370, the defendant was indicted under a statute, which made it an offence for any one, “ not being authorized by the board of health, or the selectmen of any town, to dig up, or aid or assist in digging up any human body,” &c. The indictment charged, that it was done without authority of the selectmen of the town where the body was buried ; but the statute said “ any town”. Considered without reference to the subject-matter and intention of the Legislature, and construed literally, the indictment should have averred that no town in the commonwealth had given authority ; but Parsons, J., while he admitted the general rule as we have stated it, said, that it did “ not exclude the application of common, sense to the terms made use of in the act, in order to avoid an absurdity which the Legislature ought not to be presumed to have intended” ; and he cites the authorities, to show that while penal statutes, as a general rule, are to be strictly construed, yet they are to receive such a construction as would conform to the intention of the Legislature, — Bac. Abr. Stat. 1, 9 ;
These authorities may suffice to show, that in penal, as in all other statutes, we must not disregard the obvious meaning and intention of the Legislature ; but, when the expressions used may, without any strained interpretation, be so construed as to serve the manifest intent, it is the duty of the court so to construe them.- — 1 Story’s Rep. 255; 1 Gal. 117; 13 John. Rep. 198.
Applying this well established principle of law to the statute before us, we deem it shorn of difficulty. It can scarcely be believed that while the general assembly, by a long course of legislation, have attempted so sedulously to guard the rights of the master over this species of property, and to protect his rightful dominion and authority over his slaves ; and while it is made a felony, which may be punished by fifty years imprisonment in the penitentiary, for any one, directly or indirectly, to persuade or indued any slave to leave his master’s or mistress’ service, with intent of escaping to some other country where he may enjoy his freedom, or to harbor or conceal such slave, with a knowledge of such intent to depart or escape as aforesaid ; that, while one who shall entice away any slave with a view of converting such slave to his own use, or the .use of any other person, shall be imprisoned in the penitentiary not less than ten years, it should be no offence whatever for any one to procure by enticement or persuasion a slave to run away - and throw off the dominion of his master. Such an omission would be as remarkable, as it would be, doubtless, in many instances, detrimental to the interest of the master. It would be leaving wide the door for the corrupting and disaffecting of the slave population of the State, by the vile or fanatical, with impunity, and would greatly depreciate the value, if not endanger the permanency of the institution itself. We repeat, it could hardly be conceived, how the learned gentlemen who drafted the penal code, with the Legislature who adopted it, as well as all the preceding and succeeding Legislatures, could have been guilty of such an oversight. Yet it is true that such omission exists, unless the inducing a slave to run away by persuasion or pre-
Having attained this conclusion, the information and warrant, which states that the plaintiff below was “trying to persuade the slave to leave his master’s premises,” is an informal effort to charge an attempt to commit the offence denounced by the statute. This warrant is informal, but not so wholly foreign from the scope and purview of the statutory offence, as to allow us, under the indulgence extended to^ such preliminary proceedings, to declare it absolutely void. Hence, the case of Duckworth v. Johnson, cited by the appellant’s counsel, has no application. In that case, the court could not gather from the preliminary proceeding an intention to charge any offence : it was, “ that the defendant had property in his hands in a fraudulent condition.” Here, if we are right in
In view of the whole casé, and after a careful investigation of it, a majority of the court, deeming the first opinion correct, adhere to it, and consequently overrule the motion for a re-hearing.