39 S.C.L. 219 | S.C. Ct. App. | 1851
Lead Opinion
The opinion of a majority of the Court was given as follows :
After full argument heard in this case we are of opinion,
First, That the result of the former trial, (wherein the prisoner, under the charge of assault with intent to ravish, was convicted of assault and battery, and in effect acquitted of the intent to ravish), was no bar to this prosecution, wherein the prisoner has been convicted under a charge of robbery:—
Second, That the facts and circumstances contained in the report of the evidence in this case, taken in connection with the result in the former case, constitute a case of robbery:—
Third, That the evidence concerning the general transaction which was in proof on the first trial, being referable to the point in issue on the second trial, was properly admitted :—
Fourth, That further order in the case pertains to the Judge, to whom the application for new trial was made, and who has sought our opinions : and that (the case being remanded to him)
Dissenting Opinion
dissenting, gave his opinion as follows :
In this case, although Judge Wardlaw could, if he had thought proper, have refused the prisoner’s motion, and no appeal would have lain from his decision, yet as he has asked the opinion of the members of the Appeal Court, I simply state, that I think, as I have heretofore stated, that there is legally no such offence as robbery of which the prisoner can now be convicted.
The former conviction has settled, that there was no assault and battery with intent to commit a rape. It is, therefore, according to my notions of law, incompetent to offer, on the charge now made, those facts. They are merged in the record of conviction of assault and battery. Cutting off this proof, there is no proof of force, or fear, which can make the offence robbery. Indeed there is no larceny: it is the delivery of a dollar without compulsion.
So, too, I hold .the former conviction is a bar to this accusation. The warrant contains really the charge on which the prisoner was tried. Every fact now charged is there charged. To talk about the precision of indictments, and the rules growing out of them as applicable to magistrates and freeholders’s courts, will be, as I think, a talk to end in palpable injustice. But considered on the most technical grounds, it must have the same effect. The prisoner cannot be now convicted without resorting to the very evidence which convicted him before. This is enough to shew that the former record is a bar.
In justice ought it not to be so ? The prisoner has been severely whipped, — and even if that was too small a punishment, do the humane principles of the common law demand any thing further? Sure am I, they do not. If the prisoner was a white man, and
I think, too, that the magistrate and freeholders were bound to follow my decision, and that Judge Wardlaw should have enforced it. Any other course leads to the strange anomaly of six fHffp.Tp.nt appellate jurisdictions from negro trials : and all of them often in direct collision witl} one another.
I close now my duty to this case, with the happy relief, that, if I have been in error, it has been corrected by the better judgment of my brethren, — and I am sure, I am more gratified by the consciousness, that none of the blood of this negro will rest upon me, than the prosecuting parties can be, who will now be gratified by offering up his blood, as a saerifice on the altar of public justice.
