Scott v. State, 1 Morr. St. Cas. 886

1 Morr. St. Cas. 886 | Miss. | 1872

Smith, C. J.:

The plaintiff in error was indicted, in the circuit court of Madison county, for inflicting cruel punishment upon a slave, in violation of the statute. The indictment contained two counts. The first charged, that the prisoner, being then and there the overseer of a certain slave by the name of Boh, unlawfully did then and there inflict cruel punishment upon the said slave, said slave being then and there the property of Lawson F. Henderson, in the manner following; setting out the character and the manner in which the alleged punishment was inflicted. The second count charged the prisoner with having, at divers times, before the finding of the bill of indictment, unlawfully inflicted cruel punishment upon other slaves of the said Henderson, the prisoner being, at the time, the overseer of the same.

A motion was made to quash the indictment, which was overruled, and the cause submitted to a jury, who returned a general verdict of guilty. A motion was then interposed in arrest of judgment, which being disallowed, the prisoner moved for a new trial. First, Because the court, in behalf of the prosecution, gave erroneous instructions to the jury; and Second, Because the verdict was contrary to law and evidence. This motion was overruled, and the defendant sued out a writ of error to this court.

It is now contended that the conviction and judgment were erroneous, for the following reasons: 1st, Because the court erred in overruling the motion to quash the indictment; 2d, Because the court erred in overruling the motion in arrest of judgment; and lastly, Because there was error in the decision of the court on the motion for a new trial.

1. We shall notice, first, the question raised upon the motion for a new trial.

There was no exception, as shown by the record taken in the court below, to the judgment of the court on the motion for a new trial. This was an indispensable prerequisite to a revision of the question of the alleged invalidity of the decisions on that motion. Hutch. Dig., art. 7, § 1. Nor were the instructions, granted at the request of the prosecuting attorney, excepted to. We cannot, therefore, notice the alleged error committed by the court in granting these instructions, as Connected with either the propriety of the finding or the supposed error committed in overruling the motion. We pass, therefore, to the only questions properly presented by the record. These arise upon the motion to quash and the motion in arrest of judgment.

2. The questions presented by these motions are substantially the same, with 'the exception of the last ground taken in support of the motion in arrest of judgment; that is, that the indictment contains two counts, and it does not appear on which of these counts the verdict was founded; we will consider the subject in addition to the ground aboye stated; they are that the “ indictment was founded on the statute, and does not contain the statutory words necessary to constitute the offense as defined by the statuteand that the “ indictment does not contain any charge that is punishable under the statute, nor does it specify any crime indictable at common law.”

The indictment under which .the prisoner was eonyieted is framed upon the statute concerning slaves, free negroes and mulattoes, passed in 1822, the 44th section of which provides that “ no cruel or unusual punishment shall be inflicted on any slave within this state. And any master or any person entitled to the service of any slave, who shall inflict such cruel or unusual punishment, or shall authorize or permit the same to be inflicted, shall, on conviction thereof,” etc. Hutch. Dig., 519.

The first clause of this statute makes it criminal for any one to inflict cruel punishment on a slave within this state. Generally an act committed in contempt or violation of the general prohibitory clause of a penal statute is indictable at common law. And hence it is contended, in support of the judgment, that as the indictment was framed upon the first clause, it should be sustained as an indictment at common law, although it should be found to be insufficient as an indictment upon the statute. But passing this question, let us notice the exception urged by counsel for the prisoner; that is, that the facts and circumstances which constitute the offense created by the statute, are not, with sufficient certainty, alleged in the indictment.

The rule on this subject is well settled in this court. An indictment upon a statute must state all .the circumstances which constitute the definition of the offense in the act, so as to bring the accused judicially within it. It should be clear and certain to every intent, and pursue the precise language of the statute.¹ 13 S. & M., 264; 23 Miss. R, 527.

It is not controverted that tbe act alleged to have been committed by the plaintiff in error was that which is denounced and intended to be punished, or that the indictment does charge with the requisite degree of precision and certainty the facts and circumstances which amount in law to the offense of cruel or unusual punishment of a slave ; but it is contended that the aver-ments of the indictment do not bring the defendant within the class or classes of persons against whom the penalty contained in the statute is denounced ; in other words, that the defendant is not brought judicially .within the act.

It is averred in the indictment that the prisoner, “ being then and there the overseer of a certain slave named Bob, unlawfully did then and there inflict cruel punishment upon the said slave, the said slave being then and there the property of one Lawson F. Henderson, in the manner following, to wit,” etc.

This description of the party charged with the commission of the offense is sufficient. It brings him judicially within the statute. The term “ overseer of a slave,” according to its statutory import, means a person who, as agent or employee of another, has a right to command the obedience, and, of course, is entitled to the services of the slave placed under his charge. It was manifestly not the intention of the legislature to confine the punishment prescribed in-the act to the owner, master or other persons entitled beneficially to the services of the slave who might inflict cruel or unusual punishment upon him, but to include all descriptions of persons having the charge, management or control of slaves. To exempt overseers from the penalties of the act, upon the ground that they are not beneficially interested in, or do not own the labor of the slaves committed to their charge, would, to a great extent, defeat the benign and salutary purposes of the law. The objections urged, and mainly relied on in the argument, that it was essential that the indictment should allege that the party charged was the master, or was entitled, as tbe beheficiary or owner, to tbe services of tbe slave, is wholly without foundation.

3. Thef last exception, that it does not appear on which of the counts in the indictment the verdict was based, is untenable.

The verdict was general. The prisoner was found guilty, therefore, upon each of the counts in the indictment. And as neither of the counts was defective, and might, with perfect propriety, be included in the same indictment, there is no ground whatever for the objection.

Judgment affirmed.

1 Wharton Am. Cr. Law, 364; State v. Gibbons, 1 Southard, 51; State v. Calvin, Charlton, 151; 1 Hale, 517, 526, 535; Staunf., 130, b.; Foster, 423, 424; Hard., 2; Dyer, 304; Kelyng, 8; Com. Dig. Just. G., 1; 1 Chitty on Pl., 357; Moore, 5; 1 Leach, 264; 1 East P. C, 419; 2 Hale, 170, 189, 190, 193; 1 Eliz., c. 1, § 25; 3 Dyer, 363; 2 Lord Raym., 791; 3 Burr, 679; 1 T. R., 222; U. S. v. Lancaster, 2 McLean, 431; People v. Allen, 5 Denio, 76; Com. v. Hampton, 3 Gratt., 590; State v. Pratt, 10 La., 191.