State v. Smalls, 11 S.C. 262

State v. Smalls

11 S.C. 262 | S.C. | 1878

Lead Opinion

The opinion of the Court of Appeals was delivered by

Dunkin, C. J.

In Mr. Philips’ Treatise on Evidence, pp. 110-112, the rule is thus stated: after premising that the testimony of an accomplice should be received with great jealousy and caution, because, among other things, they stand contaminated with guilt by their own confession, and are sometimes entitled to a reward upon obtaining a conviction, Mr. Phillips says: “The doctrine of a conviction being legal upon the unsupported evidence of an accomplice has been greatly modified in practice, and it has long been considered as a general rule that the testimony of an accomplice ought to receive confirmation, and that, 'unless it be corroborated in some material part by unimpeachable evidence, the presiding judge ought to advise the jury to acquit the prisoner.”

The report of the presiding judge does not state his instructions to the jury, nor was it necessary under the specific grounds of appeal. Tt cannot, therefore, be affirmed that the verdict was illegal, although unsustained by any evidence except that of an accomplice in the crime, and whose general character would seem to impair his credibility. On the other hand, the character of the defendant, both as an honest man and good neighbor, was sustained by the witnesses. Tt is true that to judge of all this was the proper province of the jury, upon which this court has neither the right nor the disposition to encroach. But in the absence of distinct information as to the charge of the judge, the infirmity of the testimony adduced, and the grave consequences to the defendant of conviction of an infamous offence, the court have determined that neither the rules of law nor the purposes of justice would be impaired by submitting the case to another jury.

The motion for a new trial is granted. Reporter. *276guilty?” See 3 Sbrob. 508; Shars. Starh. Ev. 727; Phil, on Ev.,, part 2, notes, 1510, and part 1, notes, 16-22; 2 Russ, on Or. 960-962. Test this instruction by following authorities. 1 Greenl. on Ev. 426; 2 Russ, on Or. 961, 962; 8 C. & P. 157 ; 6 C.& P. 595; 6 C. & P. 388; 8 C. & P. 106; 7 C.& P. 272; 8 C.& P. 732.

There was no corroboration of Woodruff. What is corroboration? See 1 Greenl. on Ev. 533, § 381, note; 2 Rich. Eq. 6. The senate journal corroborates only to the extent of identifying defendant with the legislative action, but that is immaterial. Greenl. on Ev, supra. The cabalistic book was not corroboration of its own author, can add nothing to the testimony of the corrupt creature, who thus corruptly refreshed his corrupt mind by corrupt evidence, and did not corroborate the identity of the defendant as connected with the issue. It was not evidence, because a witness may refresh his mind from a written paper only when such paper is intelligible to some other person, and is open to be tested by a cross-examination upon the paper itself. 1 Greenl. on Ev., § 437, note.

In the check to “ cash or bearer,” there is no corroboration; it might have been handed to any one else just as well. Alderson, B., in 7 C. & P. 272, supra. Nor does the check presented corroborate the accomplice — it was paid on January 18th, a day before the check proved was in existence. But then the accomplice corroborates the check, and the mysterious book corroborates the corroborator.

There is no corroboration in the deposit-slip, for the defendant is not brought into connection with it. It is not signed by defendant or by Jacobs, and should not have been received in evidence. Jacobs living, no other person could testify to the paper. Shars. Stark. Ev. 418, 64, 65; 1 Sm. Lead. Cas. 503 ; 2 N. & McC. 331; 4 Rich. 52 ; 7 Rich. 66; Bail. Eq. 482 ; 2 Hill (N. Y.) 557; Salk. 285, et cet. This is different from entries in shop-books. 2 McC. 157.

The entries in bank-book, are no corroboration. The witness who made them says he knew nothing personally. Of themselves they prove nothing. 4 Seld. 170; 4 Denio 354.

But every fact proven may be admitted — that Woodruff was *277•clerk of the senate, and one of the Republican printing company; that defendant was a senator; mover of the joint resolution mentioned; that he voted for it; that Woodruff did give defendant a cheek for $5000, which was paid to defendant at the bank —and still there is no proof of bribery. That charge, the very essence of the offence, is proven by Woodruff alone, uncorroborated by a single person or a single fact.

November 29th, 1879. The opinion of the court was delivered by *

Willard, C. J.’

In the case of State v. Cardoza,* just de-cided, we have considered and disposed of all the propositions presented by the third ground of appeal from the decision refusing the motion in arrest, and in the first and second grounds for granting a new trial, and they need not be again considered. The remaining questions will be considered in the order in which they stand in the grounds of appeal.

The defendant was indicted for bribery as a member of the senate of this state. Before the commencement of the trial he presented to the Court of Common Pleas a petition for the removal of the cause to the Circuit Court of the United States. He alleges that he is a person of color, was formerly a slave, and was afterwards a captain and pilot in the service of the United States, and that for that reason great prejudice exists against him in the county of Richland, where the indictment was found. He alleges that prejudice exists against him on account of his race, color and previous condition of servitude, “so that he cannot have a fair, impartial trial in this honorable court, by reason of political excitement, and by reason of the prejudices excited against him by articles published in the newspapers. He further alleges that he had been elected a representative to the United •States congress, and was then engaged in a contest of his seat with one claiming to have received such election, and that he believes that the said prosecution on the indictment above set forth is incited against him by a conspiracy to prevent him, by intimidation, from holding an office under the United States, and from discharging the duties thereof, and by the same to *278injure him in his property, and to molest, interrupt, hinder and impede him in the discharge of his official duties, and that said indictment,is presented with intention to deprive him of his rights, privileges and immunities secured by the constitution and laws of the United States, to which, as a citizen, he is entitled.” He alleges the existence of great prejudice against him in said county, excited through such contest, and that he cannot enforce, in the judicial tribunals of the part of the state where the said prosecution is pending, the right secured to him by the laws, providing for the equal civil rights, as citizens of the United States, of all persons within the jurisdiction of the United States.

The removal of the cause is claimed under Section 641 (page 114) of the Eevised Statutes of the United States. This section provides that “-when any civil suit or cripiinal prosecution is commenced against any person who is denied or cannot enforce, in the judicial tribunal of the state, or in the part of the state where such suit or prosecution is pending, any right secured to' him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States,” such suit or prosecution may, upon the petition of such defendant, filed in the state court at anytime before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next Circuit Court to be held in the district where it is pending. It further directs that “ upon the filing of such petition all further proceedings in the state court shall cease, and shall not be resumed except as hereinafter provided.” The section in question extends the right of removal to certain other cases not important to be specially considered at this time, as the construction of the section can be ascertained without particular reference to such omitted portions.

This court is charged with the enforcement of the constitution of the United States, and the acts of congress passed in conformity with it, in cases within its jurisdiction, as effectually as if it had been brought into existence under power created by that constitution. We must settle the construction of the constitution and laws of the United States, subject to revision by the Supreme Court of the United States, whenever a similar duty would be imposed, as it regards the constitution and laws of our own state. *279The section in question must be regarded, so far as it concerns criminal prosecutions commenced in a state court for the redress of wrongs committed against the laws of the state, as, in substance, an interdict of such prosecution whenever, by the law governing the court, some right is denied that is secured to the defendant under the constitution and laws of the United States, where such provision is intended to seem re equal civil rights among all citizens and persons residing in the United States, and where the deprivation of such right is material to his defence. In this respect there are but two views to be taken of the intended effect of the act of congress over proceedings in a criminal cause, after arresting its course in the state court; one is that the cause shall proceed to trial and judgment in the United States Circuit Court, and the other that it shall cease altogether, or until by some authority, not very clearly pointed out, jurisdiction to proceed shall be restored to the state court. The first-stated of these views is without reasonable support. It assumes that the Circuit Court of the United States can obtain jurisdiction of crimes committed against the laws of the states, and of the penalties imposed therefor by such laws. It would be singular, indeed, if such an extraordinary power should b^ found to have laid dormant through a century of our national existence, escaping the attention of the ablest jurist. The difficulty in the way of such a jurisdiction is fundamental. What character would such a criminal prosecution obtain on removal into the United States courts ? It certainly would not then be a criminal case in the sense contemplated by the constitution and the acts of congress settling the criminal jurisdiction of the Circuit Court. A criminal case, as usually understood under the common law, is a proceeding by a sovereign of a realm in his own courts against one subjected to his authority for a violation of bis laws. The United States is such a sovereign, and proceeds in such manner in the courts of the United States clothed with criminal jurisdiction.

The United States courts, as criminal courts, when proceeding by indictment, act only on such cases as are found by grand juries convened under the laws of the United States, and serving in the United States courts alone. Public officers of the United *280States conduct and control such proceedings. Beyond doubt, the Circuit Court, as an incident to a civil action properly pending before it, can pronounce a judgment that derives its force wholly under the laws of a state, but that results from a direct grant of such jurisdiction in the constitution of the United States. The constitution confers on the courts of the United States jurisdiction of “ controversies ” between parties of a certain character. Const. U. 8., Art. III. In no just sense can a criminal proceeding in the courts of the state be regarded as a controversy as that term is used in the constitution of the United States. So the court of a foreign state can enforce, as between parties subject to its jurisdiction, rights having their origin and sanction only under the laws of another state. No such attempt has ever been made to transplant criminal jurisdiction, and it is inconsistent with the nature of such proceedings. In the constitution of the criminal administration of all civilized states, the functions of justice and mercy are inseparably united. While the administration of justice is committed to one source of public authority, the power of pardon is usually placed in the hands of another. A subordinate authority to control and supersede such prosecutions is placed in some authority, either executive or judicial. Will it be contended that the administration is carried to the courts of the United States, leaving the functions of ameliorating its severity in the hands of the state authorities, or that these attributes are carried over into the same jurisdiction, to be exercised in some manner never pointed out by any constitution, law or precedent? The acts of congress do not attempt to solve the numerous difficulties in the way of such a jurisdiction and we shall not attempt it. It is evident that if it had been the intention of congress to change radically the rules, forms and substantial incidents of the proceedings of the criminal courts of the United States, some evidence of such an intention would have appeared in the acts in question; whereas, nothing of that kind appears. We cannot presume such an intent. It must be concluded that a criminal proceeding, removed into the United States court, if it can proceed at all in those courts, must do so as a civil cause. Such a proposition carries absurdity on its face, and need not be considered. We are compelled, then, to conclude that the object *281of the act was to terminate certain criminal proceedings, having their origin under the laws of a state and in the courts of a state, by removing them to a court having no authority to proceed in them. Although- this conclusion leaves the relations of the courts of the states and of the United States in an anomalous and unfortunate condition, and may give rise to the inquiry whether any constitutional authority exists in the congress of the United States to interdict proceedings in state courts on grounds involving the integrity of state administration alone, especially when full authority has been granted for the correction of any errors that these courts may commit-, on failures to give full force to the constitution and laws of the United States in a court having appellate jurisdiction over the state courts for that purpose, yet we are forced to conclude, by the terms of the act itself, that such was the intention of the body from which it emanated.

Under the view we take of the case, it will not become necessary to examine the authority of congress to reach such a result, as we do not regard the case in hand as coming within the act in question. Considering, then, that the object of the act of congress was to stop proceedings of a criminal character pending in a state court under certain circumstances, it becomes evident that it was only intended .that such authority should be exercised when the law of the forum thus invaded does not admit of a defence that involves some ground of right, arising or secured under provisions of the constitution and laws of the United States intended to secure equal civil rights. Assuming, for the purposes of the argument, that congress possesses such powers in any degree, and a reasonable case for its exercise might be imagined when such courts had not the legal measure of power to enforce some right arising under or secured by the constitution and laws of the United States, provided there was no other or better remedy. Such a case might arise when one indicted in a state court, having full right of citizenship under the constitution and laws of the United States, is, by the law of a state, deprived of a standing in the court allowed to citizens at large. If the right of trial by jury, of being confronted by witnesses, or to any of the incidents of a regular and usual arraignment, trial, verdict and judgment allowed to other citizens, be denied such a person, *282it may well be said that a tribunal, thus destitute of the means of administering justice in the case, is not entitled to be regarded, under the constitution and laws of the United States, as possessing any competency to act upon the rights of such persons. But even in this case a question would remain whether an adequate remedy is not afforded by the appellate jurisdiction of the Supreme Court of the United States, acting on the proceedings of the court of last resort in the state upon such case, inasmuch as in such an appeal the defendant could well say that he had been denied a right claimed under the constitution and laws of the United States; but that need not be considered. It may be observed that no such defect of authority is alleged or exists in the present case.

On what principle could legislation by congress be carried beyond the point ? If such a power exists, it need not be confined to the cases enumerated in the act in question, but may extend to any case when either the prosecution or defence set up in a state court involves any right or modification of right originating under or secured by the constitution and laws of the United States. When, then, it is considered to what extent the laws of the United States enter in some degree into contracts and rights of action and defence, and how extensively they might be made to influence them through the various powers committed to congress by the constitution — notably, of those relating to excise and imports — some conception may be formed of the possible extent of such a jurisdiction. It may be said that it cannot be presumed that congress will stretch a prerogative to its utmost limit, and, therefore, in considering the nature of such a jurisdiction, we ought to have in mind only that idea of it which appears to be reasonable and consistent with the general objects of the constitution. This view, reasonable enough when applied only to the ordinary motives of a legislative body, has no applioation to cases involving the equilibrium between the different parts of a complex government established by fundamental laws. The constitution of the United States placed the security of the states against federal encroachment on no such low ground. Its principle is to circumscribe and limit the powers that may be detrimental to the rights of the states, and to trust *283as little as possible to the assumed principle that rival governments, acting in the same realm or sphere, will be controlled by moderation towards each other.' Those who framed that instrument were too well versed in the History of government to entertain such an optimistic idea. If, then, the constitution impresses the important truth that, in maintaining the equilibrium of this complex government, reliance must be had solely in limitations of public authority, the interpretation of that coristitution, and of the law passed under it, must be largely influenced by it. If it be conceded that power exists under the act of congress, even to the limited extent already considered, there is still a jurisdiction of incalculable limits, and of sufficient potency to work out material changes in the structure of the government and the equilibrium of its parts. But if the plenary powers contended for by the defendant exist, the equilibrium between the states and the national government, sought so carefully by the constitution, is practically destroyed.

The appellant contends that prejudice, based on his being a person of color, and formerly a slave, in his political opinions and associations, and on the ground of services rendered during the late war to the United States, exist in the country where the indictment was found. Is this a case within the act of congress, assuming the facts to be as stated by him ? If so, then the existence of local prejudice likely to affect the rights of a party prosecuting or defending in a state court is ground for inhibiting such court from exercising its jurisdiction, under the authority of an act of congress, where such prosecution or defence involves any direct or incidental right arising or secured under the constitution or laws of the United States. If the rights of equal citizenship are entitled to this protection, then all other rights of the same origin or sanction are entitled to equal protection. The fourteenth and fifteenth amendments of the constitution, intended to secure equal civil rights in this respect, do not place such cases on higher ground than other rights secured under the constitution. Congress is authorized to enforce such provisions by “appropriate” legislation. By appropriate legislation is clearly meant such legislation as that sanctioned by the instrument at large. Unless, then, such legislation as we have under consideration *284would be appropriate in the case of other rights secured under the constitution, it would not be embraced within the intention of those amendments. We are at liberty, therefore, to consider the subject, on general principles, applicable to the constitution at large.

There is no clause in the constitution of the United States that guarantees a just administration of the laws of the states within their proper sphere as affecting rights enjoyed under that constitution, except as that is implied in certain provisions conferring jurisdiction on the federal courts, both original and appellate. The power in question will not be claimed to arise under that claim of jurisdiction; from what source, then, can it arise ? There is nothing in the constitution as originally framed, ■or in the amendments, that can by any process of reasoning be perverted into such a guaranty. The idea of stopping the administration of justice because it is imperfect, has no place among the principles of the law nor the practice of governments. You might as well arrest the action of the heart because the blood is impure. To stop it on the ground that the community surrounding the court, and possibly affecting the purity of its administration, is in a temper unfavorable to a litigant, without any provision for transferring the trial to another part of the same jurisdiction where circumstances of a more favorable character exist, is to acknowledge exhaustion of the capacity and means of government. The application of the views here presented to the case made by the appellant’s petition, is so obvious that it needs no particular discussion.

This court held in Barker v. Bowen, 8 S. C. 400, that in order to remove a cause from the state court to the United States Circuit Court, it was necessary that sufficient cause for such removal should appear on the face of such petition. It is not necessary for the purposes of the present case to say whether the facts alleged are traversable in the state court; for the defect is one of law appearing on the face of the petition in the present case. The general statement of the petition that the defendant “is denied and cannot enforce in the judicial tribunals of the part of the state, where the said prosecution is pending, the rights secured to him by the laws providing for equal civil rights as *285citizens of the United States of all persons within the jurisdiction of the United States/’ is .insufficient- in itself, independent of the ground of fact laid for such a statement. It assumes rather the character of an indictment or impeachment of the tribunal before which one is laboring under a charge of crime, proceeding from the alleged criminal against his sovereign sitting in judgment upon his conduct, than an exception to the right of the court to proceed in the case. If such an anomalous proceeding is to be tolerated as consistent with the practice of civilized communities, the indictment, at the least, ought to be specific and lay a foundation of fact within the act of congress. But where we look into the facts alleged they amount to nothing more than a charge of prejudice existing in the community. If a question of removing the cause for trial to another county had been raised, the court could have looked into the truth of the facts alleged, but this was not the defendant’s demand. He selected his own forum, and he must stand by that selection. The prayer of the petition was properly denied.

The privilege of a member of congress was not available and was properly refused. An indictment for bribery is not arrested •by such privilege.

There was no duplicity in charging in the indictment that the defendant corruptly accepted a gift and gratuity, and a promise to make a gift. The promise must be regarded as relating to a gift additional to that alleged to have been given and accepted. There is no inconsistency in taking a certain sum and the promise of a further sum, and the indictment must be read in that sense. The charge is not in any sense in the alternative, and is "only cumulative as it regards the consideration of the bribe, a single act of corrupt taking being alleged.

The statement that the question of legislation to which the bribe related, “was and might be by law brought before,” etc., is without fault. It was merely equivalent to saying that it was brought before him to act upon as a senator in conformity with law. It cannot be referred for explanation to a somewhat similar phrase in the statute constituting the crime, for the latter is in the disjunctive and intended to treat cumulatively the cases to which the crime should apply, while the indictment *286alleged only a single case, and uses that language solely to characterize that case.

The joint resolution in regard to which the bribe was alleged to have been offered and received was sufficiently set forth by its title, that being the due and ordinary mode of designating the particular action of the legislature in a given ease. The terms of the resolution did not in the least enter into the constitution of the offence. The essence of the crime was the acceptance of a gratuity, or the-promise of one “under an agreement” that his vote should be given in a particular manner as to some “question, cause, or proceeding which is or may be by law brought before him in his official capacity.” The identity of the “question” is complete with the statement of the title of the measure of legislation that was thus contemplated. The terms of that resolution, as it was finally passed, are immaterial, as they were subject to change after the agreement, for the bribe was complete without changing the identity of the “ question ” that was the subject of the agreement. This objection to the fourth count is disposed of by what has just been said.

The jury were charged that the fifth count was defective, and therefore' the objections to that count need not be considered.

The ground urged for a new trial will next be considered. There was no error in admitting into evidence the printed records of the proceedings of the senate in proof of such proceedings. Article II., Section 26, of the constitution, requires each house to keep and publish a journal of its proceedings. The journals so published are competent evidence to show what matters were pending before the legislative bodies at any particular time, and as that was a matter at issue, it was proper to introduce the journals as the highest legal proof of the fact.

It is not necessary to consider the competency of such proof to establish the fact of an act done by the defendant, as an individual member of the senate, that constituted á material part of the crime charged, for no such question is raised. The evidence being competent for any purpose was properly admitted.

Nor was there error in admitting proof from the books and memoranda of the bank. The state sought to corroborate the testimony of an accomplice by a line of proof that embraced *287certain facts, of which one was that a credit had been given to the defendant by the bank in which he kept his account, as upon a deposit of the check paid to him for the purpose of the bribe as alleged by such accomplice. It was competent to prove the fact of such credit being, given by the books of the bank. The memorandum alleged to have been made in the ordinary course of business by the officer who received the deposit, and which was intended to show the nature and amount of the deposit, must be regarded as representing the original note or memorandum from which the books were made up, and as such was competent to explain the books. There was accordingly no error in its reception in evidence. As no exception brings before us the legal force of these proofs, that subject need not be considered.

The court having overruled all the exceptions the appeal must be dismissed.

McIyer, and Hasjkell, A. J7s, concurred.

Ante page 195.

Concurrence Opinion

Separate OPINION of

McIver, A. J.

In this case I concur fully in all the conclusions reached by the Chief Justice. I desire, however, simply to indicate the reasons why I think there was no error on the part of the Circuit judge in refusing to allow the defendant the right to challenge peremptorily the juror, William T. Martin. I have already presented these reasons in an opinion just filed in the case of State v. F. L. Cardoza,* and it is unnecessary to repeat them here, but only to refer to them .as influencing my judgment in this case. The only difference between the two cases is that, in the case against Cardoza, the defendánt, after having been refused the right to challenge peremptorily two of the jurors, who had been drawn after the twelve originally presented, actually did exercise the right of peremptory challenge to the full extent allowed by law, by challenging five of the original twelve, while, in the case now under consideration, the defendant did not offer to challenge peremptorily but two of the jurors presented, Stanley and Martin, one of which was allowed and the other disallowed. The peremptory challenge of Stanley was properly allowed, because he was one of the *288twelve originally drawn and presented, while that of Martin was properly disallowed, inasmuch as he was drawn after the original twelve, and, until they had been disposed of, either by acceptance- or rejection, the defendant could not reach Martin. Until they were sworn, they could not be'regarded as accepted; and, certainly, in this case, it could not be said that they had been accepted by the defendant, for, as the record shows, after his challenge of Martin had been disallowed, he then peremptorily challenged Stanley, one of the original twelve, thereby demonstrating that he had not accepted all that remained of the original twelve. It is very clear, therefore, that at the time the defendant offered to challenge Martin, who had been subsequently drawn, he had no right to do so; and it does not appear that he attempted to exercise this right after those who had been originally drawn were disposed of.

Ante page 195.

Concurrence Opinion

Haskell, A. J.

I concur in the result. My reasons are stated in a separate opinion filed in the case of State v. F. L. Cardoza.

Appeal dismissed.