Lead Opinion
delivered the opinion of the Court.
This prisoner, with Thomas M. Brown, was indicted in six counts, the first that they did inveigle, steal and carry away a slave named Isaac, the property of John Truesdale: 2d. That they did hire, aid and counsel one James Brown, son of Wilson, to inveigle, steal and carry away the same slave: 3d. That they the said James Brown and Thomas M. Brown did aid the said slave in running away and depart-
The motion for new trial presents, first, the ground that the prisoner had the right to have the names of the supernumerary jurors (who had been drawn and arranged on Monday,) redrawn, and presented successively, as drawn, to the prisoner for his challenge. Before I consider this or any of the other grounds, it is proper that I should remark, that I never saw the grounds of appeal, until read in this Court. The prisoner’s counsel told me he would appeal, but furnished no grounds: the brief interval between the close ofa seven weeks Circuit of incessant labor, and the meeting of the Court of Appeals, was the only opportunity I had to make out my reports. Rather than delay this, and other cases of the same attorney, I made out the reports iu which he was concerned, and forwarded them to him : and to this report, he has added such grounds as he chose, and of course they are not noticed by the report. This course is altogether wrong: and hereafter if notice, in writing, of appeal be not furnished, according to the rule of Court, the appeal will not be noticed, and parties must bear the consequences.
It may be, and very possibly the prisoner’s counsel did, on the Clerk beginning to call the supernumerary jurors, suggest that they ought to be drawn over; and that he was told, that case of the State v. Kleinback settled the practice, and that the Clerk was pursuing the proper course. But it made so little impression on my mind, that I had entirely forgotten it, aud were it not that the counsel asserts it to be so, I could not say that any thing of the kind took place. If it- had been seriously pressed, and I had thought it could have benefitted, and not injured the prisoner, I think it very likely, ex specials gratia, I might have indulged the whim!
But assuming every thing the prisoner’s counsel desires, I think the course pursued was right. It has, from my first recollection of criminal practice, been the practice to present to the prisoner the jurors for challenge, beginning with the foreman of jury No. 1, and running through the petit and plea jurors No. 1 and 2, impannelled and sworn, and then to present, successively, the supernumeraries, as drawn on Monday. The first questioning of this course began, on the part of a very experienced and zealous counsel, A. W. Thomson, Esqr., in the case of the State v. Resolved Slack. Judge Colcock, in that case, speaking of presenting the jurors, in the order in which they were impannelled, to the prisoner for challenge, very justly and pertinently observes: — “ But there can be no well founded objection to calling over the jury in the manner in Which the Clerk proceeded in this case; and if there were, no injury could result to the prisoner, for he is not thereby precluded from, his right of challenge, nor even restrained in its exercise. If he proceeds {in his challenges) in the manner in which the law directs him to proceed, it is wholly immaterial how the panel is called. On his arraignment, if he thinks it necessary to his defence, he may demand a copy of the indictment, a list of the panel, and three days to prepare; so that he has a full opportunity of selecting his jury."
This I think a just view of the law, and no objection of the kind I am now considering ever ought to be regarded as a debateable ground for a new trial. For, as is said, it is perfectly immaterial how the jury may be called; twenty peremptory challenges will give the prisoner the jury of his choice. In this case, the prisoner selected his jury before the panel was exhausted; so that no juror was forced upon him, against his will.
The objection started in the State v. Slack was considered in the State v. Sims, and authoritatively decided that the jurors impannelled as juries No. 1 and 2 were to be first presented to the prisoner. Speaking of exhausting jury No. 2, and still that the jury is not completed, Judge Johnson, who delivered the opinion, said — “If that is exhausted, then the names of the supernumerary jurors are to be drawn from the box or glass, until the jury for the trial of the prisoner is completed.” It will be observed that the ground of appeal did not question the manner in which the supernumeraries were presented, it spoke merely of juries No. 1 and 2 being presented, instead of the jurors being called as their names stood on the venire. Therefore the remark of the judge was a mere obiter dictum, on a matter to which his mind had not been particularly turned. I have no doubt the supernumerary jurors in that case were called as drawn on Monday; for such has been the invariable practice of the Clerk of Newberry.
On the 2d and 3d grounds it is unnecessary to say more, than that the evidence, if believed, made out the charges against the prisoner, under every count in the indictment.
The 4th ground assumes a very novel and staitling proposition, that to carry off a slave from his master’s possession furtively, with the intent to give him'his liberty,is not larceny. It is not necessary now to discuss whether such an act would not be larceny at common law. Though I may be permitted to say, there is no doubt it would. For the secret, fraudulent, deprivation of the owner of his goods, shews the felonious intent, as well without as with the causa lucri. But under the Act of 1754 there can be no doubt: for it declares the felony to consist in the inveigling, stealing, and carrying away a slave, so that the owner or employer shall be deprived of the use and benefit of the slave. The facts of inveigling, persuading a slave to leave his owner, and then carrying off the slave, so that his owner is deprived of his service, make one offence, and constitute stealing a slave, under the Act. The State v. McCoy.
Upon the 5th ground, it is only necessary to remark, that if true, as stated, it would be no objection. For then the verdict would be applied to the counts sustained by the proof. The State v. Crank. In this case there are three offences, of kindred character, charged; one for stealing, — another for hiring a third person to steal, — and the other for aiding the slaves to run away. The judgment is the same upon these offences, and though separate, in some degree, in description, they are so blended in fact, that the same proof applies to them all. There can be therefore no objection to their union.
As to the 6th ground, it may be remarked, no such instruction was given. It may, and very probably will, present an undecided question, in this State, if a jury, after being told
The 7th ground presents the question, whether the witness, James Brown, (big mouth) was not corroborated. If he was, then there can be- no doubt that the prisoner is guilty. The Judge below said not to the jury, that the witness was fully1 corroborated; it is true, that was his deliberate conviction, still he was not bound to say so to the jury, and he withheld, as far as possible, his conclusions on the facts from the jury. One of the prisoners owed his life to the Judge, who suggested to the jury the possibility of innocence; and the only chance which the other had, was in so arraying the facts, as to make an apparent question of guilt or innocence, when indeed there was none. If this case be compared with Ford’s case,
It may be, as said in Rex v. Wilkes, that a corroboration of an accomplice’s testimony should connect the prisoner with the felony. Yet Alderson, B. in that case, said to the jury, “You may legally convict on the testimony of an accomplice only, if you can safely rely on his testimony but he said, “ J advise juries never to act on the evidence of an accomplice, unless he is confirmed as to the particular person
After this review there can be no room to question the prisoner’s conviction. Indeed, I am much inclined to concur in
The other two grounds require no observation. I must, however, be allowed to say, in reference to the 8th ground, that I not only made no such charge in this case, but that in nearly twenty-one years, that I have now had the honor of presiding in the Courts of the State, I never made such a charge in any capital case. I feel too much for any poor trembling wretch, standing on the narrow isthmus between time and eternity, to cut off from him even the chance of escape, which he has in a jury properly instructed. When I think the prisoner ought not to be convicted, then I never hesitate to put my foot on the scale, so as to make it preponderate in his favor. But never has my opinion of the guilt of a prisoner, charged with a capital felony, been expressed to a jury.
The motions in arrest of judgment, and for new trial, are dismissed.
Notes
The State v. William Ford.
One charged as an accomplice was proved to have been concerned in the commission of the telony. After this proof, in con oboration of his testimony as an accomplice, it was held, competent to prove any act or declaration of his which went to show that he and his associate did commit the felony.
Proof of declarations which show the inception in the mind of the prisoner of a scheme of villainy, which is afterwards developed by an act done, and for which he is on trial, is competent. Remoteness of the time when such declarations were made, cannot, in such case, render them incompetent.
According to a well settled rule in criminal cases, if a prisoner’s guilt be clearly made out by propir evidence, in such a way as to leave no doubt in the mind of a reasonable man, his conviction ought not to be set aside because some other evidence was received which ought not to have been. 2 Russ, on Crimes, 5.'>0.
It is in a case of doubtful facts, or to rebut the legal presumption of guilt, arising from the possession of stolen articles, that a good character proved in court is of most effect.
Before O’Neall, J. at Spartanburgh, Spring Term, 1839.
The prisoner was indicted, with one Jesse Hindman, for stealing two slaves, Jenny and Douglass, the property of Philip Pilgrim.
The prisoners were together charged with a felony; many of the circumstances on which their guilt depended, must be gathered from the act; of each. Dill proved the manner in winch the negroes were carried off — his mode and manner of travelling. In these respects he was corroborated by J. W. Hay and John Cole, who saw him on his way. He also stated that his wagon broke down, and he turned the negroes into the woods — he and they returned to Ford’s. He described a house in which they were kept; out of that house, on the Sunday week after they were stolen, the negroes were run. He said that the prisoner furnished the negroes with throe dollars to buy shoes for their trip; they each bought, on the night and the day preceding the night they were stolen, a pair of shoes, for which they severally paid one dollar and fifty cents.
In the course of the case, the Solicitor proposed to ask David Anderson, if, at any time, the prisoner had proposed to him to embark in a scheme of villainy like the present. This question was objected to. His Honor thought it competent to shew the existence of the corrupt intention on the part of the prisoner, at a time previous to the commission of this felony, and which was consummated by it. The witness said that the prisoner, two years ago, was drinking, and made some impertinent observations to him; he commended his, (witness’) smartness, and told him if he would come
In tbe course of tbe defence, tbe prisoner relied upon tbe fact, that Dill told West, another prisoner in gaol, that be did not know Hindman, be bad never seen him that be knew of. In bis examination, Dill said be saw Hindman at Ford’s on Sunday night when the negroes were stolen — and again at tbe same place on Wednesday night, when be, Dill, started off with tbe negroes. Dill’s character was attacked by tbe prisoner — but ten out of fourteen witnesses swore that they would believe bim. There were several letters produced in evidence, three of which Dill swore were written by Ford, as he believed — he said be received two of them in gaol at Greenville, from a man who would not tell bis name. Tbe gaoler, Norton, said one of them was found ten or twelve miles above Greenville, and was brought to bim at bis request. Tbe other, be said, was found sticking in a bush in tbe gaol yard, and was pointed out to bis little boy by tbe prisoner. Tbe prisoner alleged they were all in Dill’s writing, and there was a great similarity between them and that acknowledged by Dill. Dill bad said in bis examination, that be was a stranger in Pilgrim’s neighborhood — that be bad once been down tbe road by Ford’s and Dr. Woodruff’s, to tbe Factory.
John B. Scott, who lives on tbe road described by Dill, and in four and a half miles of Pilgrim’s, proved that Dill bad been at bis bouse and stayed all night, tbe Summer or Fall before this felony. He said be was a Patent right School master — he was going to Cross Anchor — thence to Augusta. They talked about' Stewart’s book giving an account of Murrell’s villainy. Dill ex
Di.l, in his examination, stated that the prisoner, Ford, furnished him with the carryall in which he carried off the negroes. The prisoner was allowed to prove that a man of the name of Roberts, who had run away for hog stealing, said that ihe witness, Rill, got the wagon from him ; but he also said, Ford was to see the hire paid. In the gaol, Ford told West that Dill got the wagon from Roberts to go to the Juggery.
His Honor submitted the case fully to the jury, and explained to them, carefully, the rules by which they ought to be governed. In commenting upon and illustrating the rules by which criminal cases are governed, he said to them, that in two cases, proof of good character would make the scale preponderate in favor of a prisoner.
1st. Where his guilt depended upon the legal presumption arising from being found in the possession of a stolen article.
2d. In a ease of doubt; where, however, there was not proof of good character, then the case was governed by the rule that the State was bound to prove the prisoner’s guilt before he could be convicted.
The jury found the prisoner “guilty.”
He appealed, on the annexed grounds.'
1. That the evidence of what Hindman said or did ought not to have been received.
2. That tiie evidence of the conversation with James Anderson, four years previous, and David Anderson, two years previous to the trial, ought not to have been reci ived.
3 That his Honor was wrong in charging the jury that evidence of good character, to obtain consideration, ought to be proved—
4. That the verdict was contrary to law and the evidence.
Henry Sf Bobo, for motion.
Whittier, Sol. contra.
O’Neall, J. delivered the opinion of the Court.
The grounds taken for a new trial will he considered in the order set down in the notice.
1st. That Hindman’s declarations and acts were competent evidence, has been conceded in the argument here; still, as the ground was not abandoned, it is necessary it should be decided by the Court
The prisoners, Ford and Hindman, were not only charged with the commission of a felony, but they had been proved, by Hill, to have been together concerned in it. After this proof, in corroboration of his testimony as an accomplice, it was competent to prove any act or declaration of Hindman, which went to shew, that true it was. he and Ford did commit the felony. The case of The King v. Stone is an authority upon this point; and in the argument of that case, it was said, and not denied, that the rule was settled at the Old Bailey, “ that where several were concerned in the same design,” the acts of one were received against another, though he were not present. The declarations of an associate, admitting a particular fact concerning himself in the same transaction, must, on the same principle, be evidence.
2d. The question propounded by the Solicitor to the Ander-
Arch. C. P. 109.
13 £ng- c. L. R, 125."
If the jury did not believe that the prisoner’s declarations to the AnderSons furnished evidence of a corrupt intention, which was consummated by this felony, then the proof by them was wholly irrelevant to, and could have had no effect whatever on, the case; and, in this point of view, the prisoner cannot have a new trial.
According, however, to a well settled rule in criminal cases, if the prisoner's guilt were clearly made out by proper evidence, in such a way as to leave no doubt in the mind of a reasonable man, his “ conviction ought not to be set aside because some other evidence was received which ought not to have been.” This rule is, I
p. 112.
Motion refused.
Evans J. — and Butler, J. — concurred.
Earle, J. — I am against the motion for a new trial. The only ground which is seriously urged, is the admission of the prisoner’s declaration to James Anderson, and his conversation with David Anderson. In deciding on their admissibility, it is necessary to recur to the object of the enquiry, and to the shape in which the question was propounded. It was supposed that the prisoner had made direct overtures to the Andersons, shortly before the felony charged, to engage with him in stealing negroes; and the general question was put — did the prisoner at any time make such a proposition ? If the answer had been that he did, and about the time or shortly before, it would have been admissible, for the reasons assigned by Mr. Justice O’Neall, and on the authority of the King v. Ellis. But the answer was not such as was expected, and was given before it could be checked, even if it had been incompetent. The answer referred to a period too remote, and was too equivocal and unintelligible to have any bearing on the issue or any influence on the jury. It was not urged in argument by the State’s counsel, and seems to have been considered either unmeaning or wholly irrelevant. The Andersons, in my judgment, proved no distinct substantive fact having any bearing on the prisoner’s guilt, nor any fact calculated to support the credit of Dill, the State’s witness. In such a case as this, where the prisoner’s guilt is very manifest, and is not only proved by the accomplice, but where his testimony is strongly corroborated by many other circumstances proved by different witnesses, I think it would exhibit unnecessary squeamishness, to say he has not been legally convicted on abundant evidence.
Dissenting Opinion
dissenting. — It is of importance that the first ground of appeal should be rightly expounded and decided. Because it arises out of a demand of strict right. The legal position of the prisoner is this : That after the two juries impannelled, had been exhausted, without obtaining a jury for his trial, it was the right of the prisoner to have the names of all the supernumerary jurors put into the box and drawn by the child: and to accept or challenge them as then drawn. So that the prisoner was not compelled to accept or challenge such supernumeraries in the order in which the clerk had arranged their names, on the first day of the term, when the regular panels had been constituted for the general business of the term, by tbe express provision of the Act of 1731. It is true that a very general practice has obtained for the clerk, on the first day of the term, to put all the names of the jurors, then present, in the box, and to make out a regular catalogue of the names as drawn.
But this is done for no other purpose than to get the first twenty-four names, which have been drawn, and not challenged or excused by the Court, in order to constitute the two juries.
For it might happen to require all the names present, before twenty four were accepted.
In fact, this frequently occurs — for instance, in Charleston ; where, in practice, supernumeraiies are very sparse. But after such catalogue of names has been made by the clerk, it happens almost at every Court, that supernumeraries arrive successively, especially in bad weather; and their names are put down by the clerk, at the foot of the drawn supernumeraries : and often swell the number, by many additional names which have never been drawn.
Now it is clear that all such names constitute equally the supernumerary jurors, although some have been drawn and others not.
The question before the Court is, therefore, whether the prisoner was not entitled, as a legal right, to have his additional jurors drawn indiscriminately from all such supernumeraries, and not bound to take them in the order put down by the clerk.
This question is best solved by the terms of the jury Act of 1731, which is as follows: “That the names of the persons who shall have been duly summoned, as shall appear,
I need scarcely call to mind that the Act of 1791 provides for the organization of two juries in the same manner.
Now I apprehend that it is dearly underthis last clause of the 7th section, that the practice has arisen of drawing and putting down the names of all the, then, attending jurors.
This is done to meet the common occurrence of one or more of the twenty-four being challenged, excluded, or not attending. That is, to fill up and complete the jury in case of such vacancies.
At every change, a draught is clearly contemplated. And assuredly ought to be made out of all the supernumeraries. Those who come in tardily, as on Tuesday for instance, and are not to have the advantage of the jurors who attend punctually on Monday.
For my part, I never knew of any other practice, even in a civil trial, whenever such draught was demanded by either party. And I can conceive of no other just construction of the jury laws, although it is very convenient, and saves time, to follow the catalogue made out in the first instance, by the clerk. And if there be no objection made, it is well so to do.
But where a man’s life is at stake, it is fit to allow him the exact provision, and the terms provided by the Act; which clearly points out a selection, from all the supernumeraries, by impartial lot. Only suppose this case, to wit: that the prisoner had objected peremptorily to the first twenty of the two regular juries. He must, then, have to make up his trial jury from the next four, and the eight first names before
No such argument can weigh in the construction of the Act, against the right of the prisoner; and the proper answer is “ ita lex non scripta est.” Such, at least, is my decided construction of the jury Acts, and no convenient practice can change so essential a right. And I will now shew that the
This was what the prisoner demanded, and what Judge Johnson calls “the uniform practice.” How can it be supposed that the Judge meant by the words, “are then to be drawn” the imperfect and past draught made by the cleik, for the sole purpose of making up the two regular juries?
To shew to demonstration, that I have given the true construction to the meaning of the Court, in the case of the State v. Sims, let it be only remembered that Sims’s counsel demanded to have the jury drawn, for the case, according to the order of names set forth in the venire. Judge Johnson,
The advantage, pointed out by the Judge, consists in the second lot, to wit: in- drawing the supernumeraries. But this second lot is precisely that which the prisoner complains was denied to him. In a word, he was denied what Judge Johnson says “ is so far a protection against packing a jury.”
For illustration, let us apply the practice to the recent Act, which allows to each party, in a civil action, the right of objecting to two jurors, and to have their places supplied from the supernumeraries.
If such parties are to have the advantage of drawing their substituted jurors, from the first names on the clerics cata-logue, it is easy to foresee that the new jury may, in some degree, be packed; which obvious consequence would tend much to interfere with the impartial lot, by which jury trials ought to be conducted, and any specific order of names would afford the same opportunity.
Lastly, it may be asked why the jury, in every case, is not drawn from the whole number of attending jurors 1 This would be a way of carrying out the impartial lot, intended by the jury Act. And this would certainly be done, but for the express provisions made by the jury Act, that the first twelve names, drawn from the jury box, shall constitute the jury to serve in all the trials before the Court.
It is, therefore, under the express provision of the Jury Acts, that the two juries regularly drawn, are first called upon to serve in every case, civil or criminal.
But as soon as the express provision of the Acts is satisfied, the established principle of drawing the jurors by lot, supervenes, in order to prevent the possible packing of the jury, by either party’s knowing who are to be the particular jurors, to be put in the place of those who were challenged and dismissed from the panel. Impartial lot is the cardinal principle of the Jury Acts, and ought to be strictly adhered to in every possible instance, where jurors are to be substituted, and especially if done by the act of the parties litigant.
This important principle is required as well for the most guilty as the innocent. From both the letter, therefore, and the spirit of the Jury Acts, the prisoner having been denied the right to have his additional jurors drawn from the whole number of the then attending supernumerary jurors, is entitled, by a fair and customary construction of the Acts, to a new trial.