17 Tenn. 198 | Tenn. | 1836
delivered the opinion of the court.
This record presents a piece of patch work and confusion. It shows that on the 24-th day of November, 1835, Andrew Hays the attorney general for the 7th solicitorial district in the
To this indictment, the prisoner pleaded not guilty; was put ■upon his trial and found guilty on the third count of the bill of indictment, that is, the second of the counts, which are not signed by an attorney general, and so far as can be legally seen, not acted upon by the grand jury. The date of this conviction is, December the 8th. On the 24th oí the same month, the prisoner moved the court for a new trial, which was refused; afterwards, to wit: on the 23th, an entryfis made, mmcpro tunc, which states, that on the 7th day of December, an attorney general pro tern, came into court and moved for leave to amend die indictment by inserting two additional counts-,which was granted. In this entry, it is stated by way of recital, that the indictment filed on 24th day of November, and the two counts filed under the order of amendment on the 7th day of December, were sent to the grand jury, and by them re-tened a true bill. No part of tbe record shows, not even an amendment nunc pro tunc, that the attorney general was ab
1st. The count in the indictment upon which the prisoner was convicted, was not preferred by the attorney general of the district, but by one purporting to have been appointed pro tern, by the court. Before the court can appoint an attorney general pro'^tempore, the record must show, that the officer appointed by the state is absent. This is not done, therefore the count on which the verdict is predicated is a nullity.
2nd. The. count upon which the prisoner stands convicted is not signed by an attorney general, nor does it appear from the record, except by recital in the nune pro tunc entry, that it was acted on by the grand jury. In the case of Fout vs. State of Tennessee, 3 Hay. 98: it is expressly determined that no bill of indictment should be sent to the grand jury without the sanction and approbation of the attorney general, proved by his signature on some part of the indictment. We not only adnait the authority, but concur in the opinion. We do not say that it is absolutely necessary, that his signature should be at the conclusion of the bill, but it must be on it, and must show that it is intended to covtr all the counts contained therein. Is this done in this ? surely not. The bill of indictment found by the jury was filed by the attorney general, Hays, on the^ 24 th November: what is called the two last counts, were filed by an attorney general pro tern, under an order for an amendment. It cannot be argued that these counts are filed and prosecuted with the sanction and approbation of the attorney general Hays, for he was absent. They were in fact filed by an attorney general pro tempore; where is his signature as evidence of his sanction and approbation thereof; no where. But it is argued, that these counts were filed as an amendment to the original bill, that the three constitute but one indictment, and that the signature of Hays to the bill filed by him, may be refered to the two counts filed by the attorney general pro tempore. We do not think so. The two last counts contain distinct and separate offences from that charged in the first, and having no connection therewith so far
Having showed that the two last counts cannot be considered as amendments of the bill of indictment,it follows that they constitute a new bill, which must have been prefered with all the formalities required by law, signed by the attorney general and acted upon by the grand jury. It does not appear that this was done. We do not say that the attorney general, Hays, could not have appended the two last counts to the first,making one new indictment of the three; and thus causing his signature to the first, to cover the whole. We think fie might; but we do say, that the attorney general pro tempore, could not, be’
It is in vain to say, that for these causes the prisoner ought to have moved to quash the bill, and that the defects are cured by verdict. In criminal proceedings, nothing but matters of form are cured by verdict. If we were to sustain this judgment, we would feel that we were destroying the great and fixed principles of criminal practice, so necessary to the protection of the liberty and life of the citizen. We cannot do so; and therefore reverse the judgment.
There is' another question of equal importance in this case, which it becomes necessary to determine, that is, whether the proof, as set forth in the bill of exceptions, sustains tho charge of larceny against the prisoner. The substantial facts are, that Hall, Blackmore & Co. sent a load of hair to Page by their slave Charles; that Page bought a part of it himself, and sold a part of it to March, who paid to the negro Charles therefor the five dollars, for the stealing of which, the prisoner was convicted. Page inclosed the purchase money for the hair bought by himself and March, in a sealed letter, directed to Hall, Blackmore & Co. and handed it to the negro, to be delivered to them. He arrived at Haysborough about dark, stopped at Morgan’s tavern and enquired for him, and was informed that he was sick in bed- Ho went into a room, where
The English authorities have gone further in giving a constructive possession to the owner than our courts are willing to
Indeed from the very nature of the relation between master and servant, the possession of the slave must always be the possession of the master. He can acquire no right to property by possession or otherwise; he himself and all he may have, belong to his master. The possession of the slave is a naked charge, unaccompanied with a trust, and he cannot part with it legally to another, except when in some peculiar cases he may have been made the agent of the master, which is not the case here. He can give no consent by which the possession may be transferred, for in point of fact he has no possession in himself. His consent then -is a nullity, and if a person receive property from him, with a fraudulent and felonious intent of converting it to his own use, he is guilty of a larceny, because he has taken it from the possession of the owner and without Jbis consent. Awful would be the consequences if this were, not the law. Shall a man’s ostler have the power to enable every thief in the country to take his horses and protect himself from punishment, by saying he received them from his slave, in whose possession they were found, and therefore there is nothing but a breach of trust. There would be no safety if this were to be the rule, for most of the personal property in the country is under the actual control and care of slaves. The owners can only be deprived of the possession of their property, without a trespass, by losing* it, by their delivery or
Judgment reversed.