5 Ala. 477 | Ala. | 1843
The counsel for the prisoner has made several points, but we think the charge of the court excepted to,
The first and second sections of that chapter, distinquish between murder in the first, and murder in the second degree, and declare the constituents of each grade of the offence, and provide that the first shall be punished with death, or imprisonment for life in the penitentiary, at the discretion of the jury; the latter is punishable by imprisonment in the penitentiary, for a period not less than ten years. The fifth and sixth sections are as follows; “5. If any person shall with malice aforethought, cause the death of a slave by cruel, barbarous or inhuman whipping or beating, or by any cruel or inhuman treatment, or by the use of any instrument in its nature calculated to produce death, such killing shall be deemed murder in the first degree.” “6. If any person being the overseer or manager of any slave or slaves, or having the right to correct such slave or slaves, shall cause the death of the slave by such barbarous or inhuman whipping or beating, or by any other cruel or inhuman treatment, although without intention to kill, or shall cause the death of any such slave or slaves by the use of an instrument in its nature calculated to produce death, though without intention to kill, unless in self-defence, such killing shall be deemed murder in the second degree.”
Where a statute is introductive of a new offence, or an offence at common law, is made a crime of a higher nature, as where a misdemeanor is made a felony; or where a common law offence is made subject to an additional punishment, the indictment in either of these cases should be drawn in reference to the statute creating or changing the nature of the offence; but if the statute is only declaratory of what was previously an offence at common law, without adding to, or altei’ing the punishment, the indictment need not conclude against the form of the statute. [1 Chit. Crim. L. 290; Russell v. Commonwealth, 7 Serg. & R. Rep. 484; Commonwealth v. Searll, 2 Binn. Rep. 339.] In The People v.
In the case of the State v. Guy Rains, [3 McC. Rep. 543,] the prisoner was indicted under the statute of South Carolina, to increase the punishment inflicted on persons convicted of murdering slaves; that statute provides, that if any person shall thereafter wilfully, maliciously and deliberately, murder any slave within the State, such person, on conviction, shall suffer death without benefit of clergy. The indictment pursued the words of the sta
We will not stop to make a particular application of the law as laid down in the citations made to the case at bar, as we have several statutory provisions which are decisive of the question we are considering. By the 12th section of the 8th chapter of the act “regulating punishments under the penitentiary system,” it is enacted, that « upon an indictment for any offence, consisting of different degrees, as prescribed by law, the jury may find the accused not guilty of the offence in the degree charged in the indictment, and may find him guilty of any degree of such offence inferior to that charged in the indictment, or of an attempt to commit such an offence; and whenever a person is indicted for an offence embracing one or more offences of a lesser character, if the guilt of the accused is not made out as charged, it shall be competent for the jury, if the proof authorizes it, to find the accused guilty of the lesser offence, whether a felony or a misdemeanor.” Again, by the 26th' section of the same chapter, “ all indictments for offences inhibited by this code, which are offences at common law, shall be good, if the offence be charged or described according to the common law; and the party charged, on conviction, shall receive the punishment prescribed by this act, nor shall the words ‘ force and arms,’ or ‘ contrary to the form of the statute,’ be regarded as necessary in any indictment whatever, &c.” •
The offence of which the prisoner has been convicted, would at common law be either a homicide with malice implied, or it would be manslaughter; one or the other of these offences it would be, and nothing less; and on an indictment for murder in the usual form, it would have been competent to have convicted him of either of these offences according as the proof might warrant.
The jury could not have been misled by the charge of the court, informing them" that they might find the prisoner guilty, under either the fifth or sixth section. At least such must be the inference from the bill of exceptions, which only professes to set out a part of the charge. We cannot infer that the court intended to decide for the jury the question of the prisoner’s guilt; but must suppose in the posture in which the case is presented, that, that question was fairly referred to the jury. Nor can we understand that the judge intimated his opinion, that the prisoner was guilty under the fifth section; and if he did, the prisoner has not been prejudiced, if guilty under the sixth section.
It was the duty of the jury to try the prisoner according to the law and evidence, and he could not have been prejudiced by the remark, that the punishment for the offence denounced by the sixth section, was not less than two, nor more than ten years imprisonment in the penitentiary. The length of imprisonment could not change the grade of the offence, or the guides by which truth is discovered. The investigations of the jury should have been alike cautious and impartial, whether the imprisonment was one or twenty years.
Our conclusion is, that the judgment of the circuit court of Jackson, so far as referred to us for revision, is free from error; and it is consequently affirmed,