Opinion
June Term, 1824.
The act of 1741 punishes an act committed by a slave with whipping and the loss of ears for the first offense, and with death for the second, on an indictment in the county court. The act of 1816 gives to the Superior Court jurisdiction of all offenses, the punishment whereof may extend to life, and in sec. 4 enacts that a slave convicted of a clergiable offense, shall have a clergy as a freeman. This clause does not give the Superior Court jurisdiction of the offense named in the act of 1741, although it may possibly be the second offense.
INDICTMENT tried before Paxton, J., in NORTHAMPTON.
The bill charged the defendant with willfully and maliciously killing two mares, and concluded, "contrary to an act of the General Assembly in such case made and provided, and against the peace and dignity of the State." The indictment was quashed below for want of jurisdiction, and the State, by its prosecuting officer, appealed.
This case involves the question whether the Superior Court has jurisdiction of the offense charged in the indictment, the solution of which is unattended with difficulty, after looking at the several acts relative to the offense and the trial of slaves. The crime may be said to have been created by the act of 1741, which annexes to the first offense the punishment of loss of ears and discretionary whipping, and to the second offense death. The punishment and trial of this offense was transferred by Laws 1793, ch. 381, to the county courts by the general description of all such offenses, the punishment whereof extended to life, limb, or member, which at the same time entitled the slave to the right of trial by jury. The subsequent act of 1816 have to the Superior Court jurisdiction of all offenses the punishment whereof may extend to life, leaving still with the county court the trial of all those where the punishment was confined to limb or member. (189) Thus far the subject is clear of doubt. But Laws 1816, ch. 912, sec. 4, enacts that a slave convicted of a clergiable offense shall be entitled to benefit of clergy in like manner with a free man; a provision which, it is argued, denotes that the Superior Court jurisdiction embraced other cases than those where the punishment was death; and that by analogy a case where the second conviction inferred the penalty of death belongs in like manner to the Superior Court. That the punishment of this offense may extend to life as much as the punishment of grand larceny, viz., upon the second conviction; and that the punishment of the first offense by the act of 1741, being aggravated greatly beyond that of grand larceny, enlists every consideration of justice and policy on the side of sustaining the jurisdiction of the Superior Courts.
To this the answer is that grand larceny is a capital offense, and by the common law is punishable with death; and it is only by the merciful extension of the benefit of clergy by the modern statutes that a person guilty of it is excused the pain of death. 4 Bl., 239. But it is still considered, in contemplation of law, as punishable with death, and is always comprehended in the description of those crimes the punishment whereof may extend to life. The crime in the indictment, on the contrary, was originally, and from its first creation, punishable only by whipping and the loss of ears, and now by death on the second conviction, and therefore cannot be understood as one of those described in the act of 1816. It is consequently very plain that the Superior Court has not original jurisdiction, and the judgment must be affirmed.
By Laws 1816, ch. 912, it is declared that in all cases in which a slave or slaves shall be charged with the commission of an offense the punishment whereof may extend to life, the Superior Courts of law shall have exclusive jurisdiction. (190)
In the present case the punishment due to the offense charged is "cutting off both ears and public whipping," and although it is death for committing a second offense of the same kind, in which case the Superior Courts would have jurisdiction, that consideration will not give them jurisdiction in the first instance against the express words of the act. I, therefore, think the judgment of the court below ought to be affirmed.
The Superior Court has jurisdiction in the trial of slaves, in cases only affecting their lives, see act of 1816. But as the punishment of death is, by the act of 1741, to be inflicted, upon a conviction for the second offense for which this slave is indicted, it is argued, therefore, that the Superior Court has jurisdiction, as this may be the second offense; and it is likened to the cases of simple grand larceny, from which the benefit of clergy is not taken away by any statute, and S. v. Isham, ante, 185, is cited to support the latter position.
The cases are by no means analogous. Grand larceny is punishable with death by law. The benefit of clergy averts the punishment; it does not change the law. Non constat, before it is demanded, which is always after conviction, that the defendant will pray benefit of it, or will be entitled to it, for he is entitled to it but once; and when demanded, it may be resisted on that or any other ground, by counter plea, ore tenus. The grounds of such resistance are never stated in the indictment, but where the second offense is more penal than the first, at least where it is a capital offense, the first not being so. Its being a second offense constitutes it a part of the crime, and if so, it should be stated in the indictment. People v. Young, 1 Caine N.Y. Term, 37. At all events, it should be so stated when its being the second offense gives jurisdiction to the court; for I think it (191) would be absurd to make the right of trying dependent on a fact afterwards to be ascertained, and which, therefore, may not be. The judgment should be
PER CURIAM. Affirmed.
Cited: S. v. Allen, post, 616.