17 Ala. 190 | Ala. | 1850
Pleasant, a slave, was indicted in the Circuit Court of Limestone, for the murder of William Copeland, and having been convicted and judgment of death pronounced against him, he prosecutes a writ of error to this court. The indictment charges him to be a slave, the property of the late William Copeland, &c. Two questions are raised by this averment: 1. Is it necessary in an indictment against a slave for a capital offence, to allege who is his owner ? 2. If so, is the ownership of the accused sufficiently alleged ? In the case of Flora v. The State, 4 Porter, 111, this court held that in the trial of a slave for a capital offence, it was necessary to prove his ownership. A majority of the court in the subsequent case of Phereby v. The State, 16 Ala. 774, thought it best to adhere to this decision. I then thought that the case of Flora was incorrectly decided, and was willing to overrule it; but although my opinion has undergone no change in reference to the case of Flora, I must now submit and consider the law as settled, that it is necessary to prove the ownership of a slave when indicted for a capital offence, and being necessary to prove it, of course the ownership must be alleged, if the owner is known to the jurors. Is the ownership of the accused sufficiently avered? The allegation is, that Pleasant, a slave, “ the property of the late William Copeland.” In the sense in which the adjective, late, is here used, it means existing not long ago, but now departed this life. This is the meaning all would give it, and no doubt is the meaning intended to be attached to it by the pleader. The accused is therefore alleged to be the property of one not in life. This cannot be, for the dead can own no property. Death strips us of all rights and title to property and casts them on the living who alone can own property. The ownership of the accused is therefore not alleged and the indictment is consequently defective. The judgment must be reversed and the cause remanded; but the accused will be retained in custody to abide another trial, unless discharged in the meantime by due course of law.
