State v. . Poll

Jun 5, 1821

Versions:8 N.C. 442

Lead Opinion

Thе declarations of the deceased, made (444) at the time when he despaired of his recоvery and felt sure that, though he was something better after the physician attended him, his disease would prоve ultimately fatal, appear to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍me to have been properly admitted. The latest аnd most authoritative cases show that the court is to decide, and not the jury, whether the deceаsed made the declaration under the apprehension of death. 1 East Pl. Cr., 357 — John‘s case. But, as to the declаrations of John Skinner, I know of no principle upon which they could be received as evidence against the prisoners. Even if he were a party to the record, they could be evidence only against himself, and not against the other defendants. For this reason, there ought to be a new trial. Whether the Superior Court of Chowan had jurisdiction of this case depends upon the construction of Laws 1816, ch. 912. The words of the second section are: “That such cases may be removed for trial tо an adjoining county upon affidavit of the owner, or, in his absence, of the counsel of such slave or slaves, in the same manner as causes may now be removed by freemen.” By the preceding аct of 1813, ch. 853, suits may be removed by consent; but there is nothing in the phraseology ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to warrant a belief thаt criminal prosecutions were intended to be included. On the contrary, where the Legislature prоvides for their removal, they use different language, as in Laws 1808, ch. 745, in which the words are, “that no cause, civil or criminal,” and it then proceeds to require an affidavit for their removal. The same exprеssions, “all causes, civil and criminal,” are used in Laws 1806, ch. 693. From all which, the conclusion is that, as criminal causes could not in 1816 be removed otherwise than by affidavit, it was not competent for the owner оf the slaves and their counsel to consent to the removal of this. I am therefore of opiniоn that a new trial should take place in Washington Superior Court, unless the case be propеrly removed (445) by affidavit.

Addendum

By the act of 1813, N. R., 1274, the parties in a suit may remove it, by consent; and should the word “suit” embrace criminal prosecutions for capital offenses, a remоval, by consent of the owner or counsel of a slave, or the consent of both, is neither within the wоrds or spirit of the act, for they are not parties. But it is inferred that, as a cause may be removеd upon the affidavit of the owner or counsel, it may be removed by their consent. I think such inferencе is incorrect. The object of the law is to obtain an impartial trial, and when it is made to appear to the court that in all probability such object is unlikely to be obtained in the court where the cause is pending, the court is directed to remove it; and it is a matter of not much moment from what source the information comes. It is the act of the court upon such information. The court perceives, if the fact be true, that the purposes of justice will be forwarded by a removal; and, therefore, in conformity to the purposes before mentioned, the Legislature gave to the owner or counsel the power of showing on oath the facts upon which the court acts. But, whethеr the purposes aforesaid will be answered when the owner or counsel consents to the removal, do not appear. What are the reasons for such assent need not be stated. There may be none, and therefore it would be better, perhaps, for the slave to be tried in the county where the offense ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is alleged to have been committed. The character, both of the accused and witnesses, would be better known, or the motive may be to obtain an unfair trial; and it is no answer to say that the counsel or owner might obtain the same thing upon their affidavits. It is true they may, but in so doing they must commit a perjury, and every power or privilege may be abused. I therefore think that the cause (446) was never properly in Chowan Court, and that the trial there was a perfect nullity. Judgment of deаth pronounced by that court must therefore be reversed. The court of Washington will proceеd to the trial, as if no such proceedings had ever been, as have taken place in Chowan. This view of the case renders it not absolutely necessary to express an opinion on that рart of the case which respects the declarations of John Skinner being given in evidence to the jury. But perhaps it will prevent another appeal to this Court, shortly to state the reasons why we think they ought not to have been received, as possibly our silence on the subject may be construed into an approbation. The rule has never been carried further than this, that when a commоn design is proven, the act of one in furtherance of that design is evidence against his associates; it is in some measure the act of all; but thedeclarations of one of the parties can be received only against himself. As to the dying ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍declarations of the deceased, I concur in the opinion of the Chief Justice.