1 Morr. St. Cas. 765 | Miss. | 1872
Lead Opinion
The plaintiff in error was indicted and convicted under the act of the 6th of March, 1850, “ to suppress trade and barter with slaves.”
Several exceptions are now urged to the validity of the judgment.
■ 1. It is insisted that the court below erred in overruling the motion in arrest of judgment. The reason assigned in support of that motion, denies the constitutionality of the act, under which the indictment was framed.
The same objection was made in Murphy v. The State, 24 Miss. R., 590. In that case, the question arose on a motion to quash the indictment, which was framed under the same statute. On that occasion, this court entertained no doubt of the constitutional power of the legislature to declare that it would be criminal to commit any of the acts enumerated in the first section of the statute, and consequently to provide for the punishment of the offenders in the mode provided. It was held, also, that indictments for the offenses defined in the first section, “ framed in the general manner indicated in the second section,” would be invalid, inasmuch as an indictment thus framed, and which would consequently contain no allegation of the character or quantity of the produce alleged to have been sold or received, nor of the name of the slave with whom the illegal traffic was had, nor of the name of the owner of such slave, would violate the right secured by the tenth section of the bill of rights to the accused, to demand the “ nature and cause of the accusation against him.”
2. On the trial, Henry R. Coulter, the prosecutor, whose name was endorsed on the indictment, was offered as a witness for the prosecution. His examination was objected to by the defendant on the ground that he was interested in the event of the suit. The objection was overruled, and the defendant excepted. The competency of this witness is the next question for our consideration.
The first section of the act, under which the plaintiff in error was convicted, provides, that upon the conviction for any of the offenses therein defined, the party convicted “ shall be fined in a sum not less than fifty dollars, nor more than five hundred dollars.” The fifth section directs that “ one half of all the fines collected under the provisions of this act, shall be paid to the prosecutor, and the other half to be appropriated to the common school fund of the county.”
It is very manifest, under these provisions, that the witness examined on the trial below, had a direct interest in the result of the prosecution. The question arising here is: Did that interest render him incompetent as a witness for the prosecution ?
It is unquestionably true, as a general rule, in civil as well as in criminal cases, that a person interested in the event of a suit or prosecution, is not a competent witness. Thus, where a penalty is imposed by statute, and the whole or a part is given to the informer or prosecutor, who becomes entitled to it forthwith upon the conviction, he is not, at common law, a competent witness for the prosecution. Roscoe Cr. Ev., 126; Greenl. Ev., 472, §403. But there are many recognized exceptions which are said to be as old as the rule, itself. Thus, it is stated as a .clear exception, that where a statute can receive no execution, unless a party interested be a witness, then he must be allowed. This exception to the general rule is based upon the presumption, that the rules of the common law are laid aside by the statute, that it may have effect, which would be otherwise wholly de
Where a penalty, given by statute, is recoverable on the indictment itself) so that the person entitled to the penalty is not driven to a suit, his title thereto gives such an interest as will render him incompetent as a witness. But if the act by which the penalty is given to the informer, prosecutor, or other person, contemplates his being a witness, his competency is of course continued ; and it is clear, that it is not necessary there should be an express legislative declaration to that effect, but that the court may infer such intention from the language of the statute or its professed objects. Oases of this description are recognized as another exception to the rule at common law. Murphy v. United States, 16 Peters R., 211; Rex v. Trasdale, 3 Esp. R., 68; Howard v. Shipley, 4 East R., 180.
It is insisted in behalf of the state, that the case at bar falls within the principle of this last exception; that there has been, although no express words to that effect are contained in the statute, “ a legislative capacitation given” to the prosecutor.
In Rex v. Williams, it was said by Mr. Justice Bayley, “Where
It is very manifest, if this rule is to determine the question under consideration, that the prosecutor, notwithstanding he had a direct and certain interest in the event of the prosecution, was a competent witness. For it cannot be doubted, that the detection and conviction of offenders were the objects of the legislature, and not the private benefit of the prosecutor. But, if this rule is applied as the test of the competency of persons who are to be benefited by the conviction of offenders, there is no case in which a person, having a direct and certain interest in the event of the prosecution, unless rendered incompetent by express legislative. declaration, would not be competent. For the manifest reason, that the presumption is not to be entertained, that the legislature would create an offense and impose a penalty with any other view than the public good, or that the penalty would be given to the informer or prosecutor for any other purpose than that of promoting the detection and conviction of offenders. The rule, as laid down in Bex v. Bayley, does not appear to be sustained by the cases cited in the opinion of the court, and is not defensible upon principle. And although it has received the approval of some high authorities in this country, we are not prepared to give it our sanction ; as it is evident that its recognition and application would effectually annul the unquestioned principle of the common law, that where the penalty is recoverable on the indictment itself, and the informer or prosecutor is not driven to a suit, he is, in consequence of his title to the penalty, rendered incompetent as a witness.
The question then is: Can it be implied, from the particular provisions and policy of the act, that the legislature intended to make the prosecutor a competent witness in prosecutions for offenses under the act ?
The statute against bribery, 2 Geo. II., ch. 24, § 8, provided,
But, it is insisted, that- the term “ prosecutor” does not generally and necessarily imply a knowledge of the criminal act charged in the indictment; hence, that the rule laid down in the. English cases above cited ought not to be applied to the case at bar.
The illicit traffic with slaves is an evil, in this community, of great magnitude. Acts in violation of the statute on the subject are committed in secret, generally at night, and always in the absence of the owner of the slave, who is the person most seriously affected. The history of the legislation on this subject, and of the criminal jurisprudence, furnish unmistakable evidence of the difficulty encountered in the detection and punishment of offenders under the existing laws. The consequent impunity with" which illegal trading with slaves was carried on, not less than its ruinous consequences, led to the adoption of the statute, remarkable for its stringent provisions, under which this indictment was framed. Whilst, therefore, it may be conceded, that the prosecutor is not presumed, necessarily, to have a personal knowledge of the offense charged, and hence, that the term is not used in our statute in a sense equivalent to the term “ discoverer,” as employed in the English statute against bribery, nevertheless we cannot doubt, from our view of the particular provisions and policy of the statute, that they amount to a legislative declaration, that the person prosecuting for an offense, under the act, may be a witness against the party charged. A different construction, instead of advancing the objects of the act, would narrow the means of the detection and punishment of offenders, by taking away the inducement held out by the legislature, with the view of stirring up greater vigilance, in bringing them to justice ; for it is manifest, if the expectation of sharing the penalty consequent upon conviction is the operative motive with the prosecutor, and the provision is based upon that supposition, it is unreasonable and illogical to expect that
3. The court was requested by the defendant to charge the jury, “ that unless they believed from the evidence, that the defendant did sell whisky, gin, rum, and brandy, the law is for the defendant, and the jury will acquit him.” The refusal of the court to give this charge is excepted to. The indictment charged the illegal sale of whisky, gin, rum, and brandy to a slave.
The general rule is, that every material averment in the indictment must be proved; but it is generally unnecessary to prove the offense to the whole extent charged. It is invariably sufficient to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified. Rex v. Hunt, 2 Camp. R., 585; Swinney v. The State, 8 S. & M., 576. Proof, therefore, that either whisky, gin, rum, or brandy was sold to the slave by defendant, would have authorized a conviction. There was, hence, no error in withholding the instruction.
4. The court was further asked to charge that “ even if the jury were satisfied that the slave got whisky out of defendant’s house, yet, unless the jury believe from the evidence, that defendant knew of his getting the whisky, the law is for the defendant, and the jury will find the defendant not guilty.”
This instruction was given, qualified by adding to it the following words: “ But if the slave «ame out with spirituous liquor, which he did not take into the defendant’s house, the defendant’s knowledge is presumed.”
The charge, as modified, was correct. It is in strict accordance with the fifth clause of the third section of the act; which, upon the proof before the jury, raised the presumption of the defendant’s guilt, as charged in the indictment, upon the proof made, that the slave obtained the whisky from the store of the
5. It is, in the last place, objected that the court erred in overruling the motion for a new trial.
According to the rule of evidence laid down by the third section, the proof was complete of the commission of an offense, when it was shown by the testimony that a slave had obtained the whisky from the store of the defendant. Neither the identity of the slave nor his ownership was in anywise an ingredient in the offense for which the defendant was indicted. But, being alleged, it was necessary that they should be satisfactorily proved. It is clear, however, that the same strictness is not required in the proof of an averment of that character, which is requisite in the establishment of the corpus delicti, except in cases where the subject of the averment is a record or a written agreement. Applying this rule, we think the verdict ought not to be disturbed.
Let the judgment be affirmed.
Dissenting Opinion
dissenting:
It is admitted that the prosecutor, according to the rule3 of the common law, was an incompetent witness against the accused. The question, then, arises: How has the prosecutor been rendered competent ? The majority of the court say, by the statute. But the statute is entirely silent on the subject. The word “ prosecutor” occurring but once in it, and then so as to disqualify him as a witness.
It is the right of every person put upon his trial for the alleged commission of a criminal offense, that none but competent witnesses should be introduced against him. This is a right secured by the common law, and a statute which attempts to abridge or interfere with such right, must receive a strict con
The same may be said in regard to penal statutes, or statutes which create offenses. They must be strictly construed ; that is to say, they must not' be extended by implication beyond the “ legitimate import” of the words used, so as to embrace cases not clearly described by such words.
Remedial statutes may receive a liberal, or, in other words, an equitable construction, by which the letter of the act “ is sometimes restrained and sometimes enlarged, so as more effectually to meet the beneficial end in view, and prevent a failure of the remedy.” And hence, it is often said, that such a case, though not embraced by the letter, is nevertheless embraced by the equity of a particular statute. A remedial statute may, therefore, speak both by its words and by its equity. But a penal statute, having no equity, can, of course, speak only by its words, and if they are not in such statute, it does not speak at all on the subject, and hence the rule of the common law, whatever it is, remains unchanged.
My opinion, therefore, is that the witness should have been excluded.