Hirschfelder v. State

19 Ala. 534 | Ala. | 1851

CHILTON, J.

This ivas an indictment for trading with a slave. The indictment charges that the plaintiff in error, at a ■certain time and place therein specified, “ did sell to a negro man slave named Ben certain commodities, to-wit, one bowl, of the value of twenty-five cents, and one set of plates of the value of fifty cents, contrary to the statute in such cases made and provided,” &c.

It is objected to this indictment, that it fails to state the con•stituent elements of the offence, in that the name of the owner of the slave is not stated, and that it is not averred that the commodities were sold against the consent of the master, owner or1 overseer, &e.

By an act of the Legislature, passed the 7th February, 1850, (Pamphlet Acts of 1850, p. 51,) it was enacted, “ That hereafter, on trial of any person indicted for trading with a slave, as now provided for by law, it shall not bo necessary, in order to conviction,, for the State to aver or prove who was the master, owner, or overseer of such slave; nor that the leave or consent was not given,” .&c. In the absence of the statute just quoted, this would clearly be a bad indictment. But we entertain no doubt that the statute was designed to remedy the- defects which otherwise would have existed in' the failure to dis-cribe the owner and to negative the consent of the master, owner, or overseer.

After a careful consideration of the statute, and- the construe- - tion contended for by the counsel for the plaintiif in error,- wo are satisfied that its effect is not to be restricted to the p.roof to be made upon the trial before a petit jury, but that it extends and was designed to apply also to the indictment. By the terms, - “ on the trial of any person,” &c., wo must understand the prosecution of any person, the word “ trial” being used in its comprehensive sense,-as embracing all the proceedings down to the acquittal or conviction of the party. But it is supposed that the remaining portion of the clause, -namely, “indicted for trading with a slave,.as now provided for by law/’ &c., shows that' that the indictment must contain the same averments as were required under the previous act, and that this statute had relation alone to the proof. We do not-think that such was the intention ; for, if wo give the sentence this meaning, we render a substantive and important portion of the enactment wholly nugatory. We allude to the subsequent part of the same clause, which says, {‘ it shall not be necessary to aver or prove,” &c. We think the meaning of the act is simply this, that in prosecutions against any person who may be thereafter indicted or proceeded against for trading with a slave, as that offence at the time of the enactment was defined os provided for by law, it should not be necessary to aver in the indictment or prove who was the master, owner or overseer of such slave, nor to negative their assent to such trading. The' position that “ aver” and. 4‘prove” are synonymes in their collocation in this enactment, cannot be supported. True, the term “ aver,” compounded of the intensive syllable, a or ad, and verus, true, signifies to bear testimony to the truth; or rather, to aver, is to express the truth of a declaration unequivocally. — Crabb’s Eng. Syn. Rut when we speak of prosecutions by indictment, and say that it is unnecessary to aver or prove certain matters,- we at once understand by the averment that the allegation of such matters is dispensed' with in the pleading, and it requires no proof of them to warrant a conviction.- We must understand the term, aver, to signify what it usually means in the connection ift which we hero find it; and thus understood, we have no doubt but that the Legislature were endeavoring to cut off the chances of escape of those who-might violate the law against trading with slaves, by rendering: certain averments in the indictment, otherwise essential, unnecessary ; and not being necessary to be averred, they need not be proved. The contrary construction would present the anomaly of requiring that the indictment should charge an affirmative fact essential to its validity, but which it was unnecessary to support by any proof- Such, for example, as the ownership' of the slave.

But it is argued that if the effect of the statute is to dispense with these averments in the indictment, it is opposed to the constitution of this State, which substantially entitles the accused to demand an indictment, before he can be put on his trial for any indictable offence, unless* in the cases excepted in the constitution, to which the case before us does not belong. We think the counsel misconceive the effect of the statute. It was certainly competent for the Legislature to enact that every person Avho should trade with a negro otf mulatto should be liable to indictment, a-nd should be fined on conviction, &c., unless the' party so indicted should prove that the negro or mulatto was not a slave, or that being, a slave, such trading was had by the permission of the master, owner or overseer. This is the effect produced by the statute on the former law. It makes the offence of trading with slaves indictable, leaving the exception as to the consent of the owner, overseer or master, to be proved' by the defendant. And, although the indictment must charge the trading to have been with a slave, yet the owner’s, overseer’s or' Master’s name need not be stated. This indictment,- then,, docs1 conform to the common law rule in describing the constituent elements of the offence, leaving the defendant to bring himself within the exception, by showing that although he traded with the negro man slave-, named Ben, as charged in the indictment, yet he did so by the leave or consent of the master, owner or overseer.

The consent proven in this case, which does not express tin articles to be purchased, is riot srich as the statute requires, ant furnishes no protection to'the accused ¡

After the best consideration we have been able to give thw case, we are unable to see any error in the record, and the judg tnent must be consequently affirmed*