Fanny v. State

| Mo. | Oct 15, 1839

Tompkins Judge.

1st. the change of venue from Lincoln county to Warren being made on the petition of the master and owner of Fanny, that error was not in my opinion cured by her .appearance and subsequent defence before the circuit court of Warren county. She was a slave and it is only in the presence of the court that the law can regard her as a free agent. In a capital case I do not believe that the assent of a free , ... , even, ought to be implied to a change oí venue, but he ought to petition in person as required by law. ,

2nd. It is contended by the prisoner’s counsel, that capital punishment cannot now be inflicted on a slave, and that the first section of the second article of the act ... ... . ° ciimes and their punishment is; so tar as slaves are concerned, impliedly repealed by the second section of the act ameii-3 1 J 1 J t • datory of'the act concerning crimes &c.- approved February 6,1836, see p. 60 of the session act-. By the first section of this amendatory act, the thirty-first, thirty-second, thirty-third and thirty-fourth sections of the ninth' article of the act concerning crimes &c. above mentioned are and by the second and.third sections of the amendatory act it is provided, .that when any slave shall be convicted of a felony, such slave may be punished with stripes to , , , 1 . . may be added transportation. It is certain that murder in the first degree of which the prisoner was convicted, is a fel-■ ony. The sections of the ninth ai tide, above mentioned as repealed, provided for the punishment of slaves convicted of a felony, for which they were sentenced to the tiary; it is then a reasonáble presumption that 'the second an d third sections of the amendatory act were intended substitute a punishment in lieu of that prescribed in the re, pealed sections. It is not then reasonable, to believe that the crime to be punished under the substituted law was any 0^ber than that furnished under the repealed law. Why should the legislature wish to punish a slave, for the same 0^ence more lightly than a free man 1 for a free man is still punished with death for murder in the first degree. No statute shall be construed in such a manner as to be inconvenient or against reason. 4 Bac. ab. 652. Were there room for doubt, on this subject, cur constitution settles that doubt. 37th section of the 3rd article of that instrument pro- . 1 vides that a slave, convicted of a capital onence, shall suSer the same degree of punishment and no other than would be inflicted on a free white person for the same offence. The framers of the constitution anticipated probably that the Ie-power might prescribe a heavier punishment to be inflicted on a slave than on a free white person guilty of a capital offence. This point then in my opinion must be de» cjfled against the prisoner.

Wore there room for subjeet°nihoS 37th sect, of olo of the state constitution, provi* <i ng that a cd’of'aoapitai offence shall samo degree mesfr'and other! than aíctod o*n a™' free, white samToiWo, drniht5 that No statute stniedin such' manner as to bo inconvo-nient or a- of what a wit-on? former01* occasion re-guilt of Konoroa tnal, not acinus-siblc to prove the ^prisoner.

3rd. The testimony of Sitton, so far as it details the de-' claraiion of Ellick, is altogether inadmissible against the pri-goner. Had Ellick been himself on trial any confessions ex-lorted from him by improper means, might have been given ja evidence against himself if they led to the discovery of . , ° J evidences oi guilt.

-Abstracting from the evidence on the record the declarations extorted from the boy Ellick, there does not in my opinion remain any evidence to justify a jury in finding the prisoner guilty. The judgment of the circuit court ought m my opinion to be reversed, for these reasons.

Because the prisoner did not petition for a change of 1 1 ° VGUUe.

2nd. Because Sitton’s testimony of the declarations of Ellick were suffered to go the jury.

3rd. Because that court, if the cause had been properly before it, ought to have granted a new trial.

The cause ought in my opinion to be remanded from the circuit court of Warren to that of Lincoln county.

Note. — The president of the court undertook to write, this opinion; and I wrote the notes printed under my name, expecting that the court would not concur in opinion on all the points made and discussed at the bar. The court however thought proper to adopt my notes as their opinion and as such they are printed. The statement of the case was not made by me but by the clerk.

G. TOMPKINS.