Opinion
June Term, 1820.
1. A person called as a juror in a capital case said, on oath, that he had not formed nor expressed an opinion respecting the guilt or innocence of the prisoner; and, after the verdict, it was proved that he had declared a few minutes before to a third person, "that he could not serve because he had made up his opinion," which was unknown to the prisoner at the time he accepted the juror.
2. Held, that there shall not be a new trial — first, because such declaration was not on oath; and, secondly, because it is contradicted by the juror on oath.
3. If the insanity of a juror be alleged as a reason for a new trial, being a disqualification so easily perceptible from its nature, it must be proved by clear and full evidence.
4. The declarations of a party cannot be offered in evidence on his behalf in any case, unless they accompany acts and be pars res gestae, and are offered as such. They are not admissible even to show the insanity of a prisoner.
5. Held, therefore, where a prisoner had committed homicide at 10 o'clock at night of one day, that evidence of what he said the next morning could not be received to prove his derangement.
6. The property in a slave is not of the essence of the offense of the murder of him, and it is immaterial whether it be laid in the indictment or not; hence it need not be proved upon the trial as laid. Quere — if the property be proved to be different from that laid?
7. If a statute take away clergy from any offense, and another statute, either prior or subsequent, create that offense by its known, legal and technical name, all the qualities of its name will attach to it; hence it will stand ousted of clergy.
8. The statute, 23 Hen. 8, c. 1, ousted murder of clergy. Our act of 1817, c. 18, gives to a slave the character of a human being and places him within the peace of the State, so far as regards his life.
9. Hence, it is held, that one convicted of willfully killing a slave with malice prepense is guilty of murder and not entitled to the benefit of clergy.
THE prisoner was indicted, tried and convicted at the Superior Court for WAKE at April Term, 1820, before Paxton, J. He was charged with the murder of "a negro man slave, (25) Caleb, the property of Frederick S. Marshall"; and the indictment concluded "contrary to the form of an act of the General Assembly and against the peace and dignity of the State."
The prisoner was allowed to ask the jurors upon oath as they were called to the book whether they had expressed or formed an opinion unfavorable to him? One Daniel Peck, being called, was thus interrogated, and replied that he had not formed nor expressed any opinion respecting the guilt or innocence of the prisoner, and he was then elected and sworn on the jury. The deceased was slain with a dagger about 10 o'clock at night. One ground of defense taken on behalf of the prisoner was that he, the prisoner, was insane at the time, to prove the truth whereof his counsel offered to give in evidence his own declarations in connection with his conduct the next morning after the homicide to be considered by the jury in connection with his conduct before the homicide, and on the same night and within a few minutes of the time of giving the stroke. But the court rejected the evidence of the declarations and conversation of the prisoner on the morning succeeding the homicide.
For the purpose of showing the deceased to be the property of F. S. Marshall the Attorney-General called a witness who proved that he had long known Caleb; that he had formerly belonged to one S. Marshall, and continued to be his property until he died several years ago, leaving an only child, who is the said F. S. Marshall, a minor. The prisoner's counsel moved the court to instruct the jury that the evidence did not sufficiently prove the property as laid in the indictment; but the court refused to give the instructions as prayed for, and, on the other hand, instructed the jury that the evidence, if believed, was sufficient.
After the verdict a new trial was moved for upon the four grounds following:
1. That the juror Peck had made up an opinion against the prisoner before he was sworn. (26)
2. That the same juror was insane and without capacity to be a juror.
3. Because proper evidence offered on behalf of the prisoner had been rejected.
4. For misdirection of the court upon the proof of the title of the deceased.
The first reason was supported by the affidavit of a person who swore that he was standing near to Peck when he was called as a juror, and that he asked him if he meant to serve on the jury, to which he replied "no, I cannot, for I have made up my opinion," and that in a few minutes he was sworn and took his seat in the jury. The second reason was also supported by two affidavits; the one made by a physician, who swore that twelve months before that time Peck had been deranged by intemperance; that he had seen him within the week of the trial intoxicated, and from that circumstance thought it probable that his mind was deranged; the other made by a mechanic, who swore that Peck came to his shop before breakfast on the day of the trial and his conduct was so strange and his expressions so absurd that he believed him to be deranged. The court overruled the motion. The prisoner then prayed the benefit of clergy, but the court refused to allow it and passed sentence of death on him, and he appealed to this Court.
Attorney-General for the State.
Seawell and Manly for the prisoner.
All felonies were clergiable at the common (27) law; that is, all who could read were burnt in the hand. The question is whether murder has not been ousted of clergy.
HENDERSON, J., after stating the facts and the questions (32) as they appear upon the record:
The ground of the first reason for a new trial is not sufficiently proved. Ruth states that Peck informed him that he had formed an opinion. When Peck said so he was not on oath, and when offered as a juror he denied in on oath. The second reason is in the same situation. It does not appear what was the state of Peck's mind at the time he took his seat as a juror. One of the witnesses speaks of his situation twelve months past; and although he saw him drinking during the week of the trial he does not pretend to say that his mind had actually become affected, but concludes that possibly it might. The affidavit of the other witness does not prove anything; and both taken together can scarcely raise a doubt much less satisfy us that the juror was deranged when he was sworn on the jury. The nature of the disqualification would render it perceptible to many of the numerous bystanders who commonly surround a court, and more full and satisfactory evidence of the fact, if true, should have been produced.
Were I left to myself, unshackled by adjudications, I must confess that I should be inclined to respect the third reason; but it is in vain for me to contend against precedents; I must submit to the law as I find it written, and my brothers entertain no doubt of the correctness of the decisions upon principle. The declarations of the party, say they, cannot be offered in evidence in his behalf unless they accompany acts. They then form part of the acts, and as such are heard. But, with due deference to these opinions, it appears to me that a man's acts are as much within his control as his words, and that both ought either to be received or both rejected. Yet it is the daily practice to give the party's acts in evidence for him. I do not contend that the party's declarations should be given in evidence for him to prove the truth of the facts declared or asserted by him, but only that the jury should be at liberty to draw inferences from his (33) having made such declarations.
The last reason is that the court refused to instruct the jury as to the effect of the testimony, allowing it to be true, relative to the title of the slave Caleb. This is a demurrer to evidence ore tenus. Observing that the evidence does not prove the property in the deceased to be otherwise than as laid, is it then a fatal defect, even if it be admitted that it does not prove the property to be as laid? We think it is not. The ownership forms no part of the offense; it is equally criminal to kill the slave of one person as of another. The prisoner is no further interested in having that stated than for the sake of identity. We give no opinion upon a case where it is proved that the property is in a different person from the one alleged in the indictment. Had the prisoner been acquitted by the jury for this defect of proof there can be no doubt but that on a second indictment for killing the same slave Caleb, charging him to be the property of some other person than F. S. Marshall, he could safely rely on a plea of such acquittal, with proper averments that the slave Caleb mentioned in one indictment is one and the same person with the slave Caleb mentioned in the other. This incontestably proves that the title or ownership of the slave is not of the essence of the offense of killing him. For then an acquittal upon the charge of killing a slave, the property of A, could not be an acquittal for killing a slave, the property of B. This case is within the principle of Pye's case and that of Susanna Johnson. Pye was charged with robbing a person in the dwelling house of A; the robbery was proved to have been from the person, but it was not proved to whom the house belonged. Upon conference of all the judges it was held to be immaterial. 2 East Cr. L., 785.
The motion for a new trial must therefore be overruled.
To avert the punishment which the law has affixed to murder the counsel for the prisoner insists that he is (34) entitled to clergy. This depends on the construction of the act of 1817, in connection with former acts on the subject of murder. As a preliminary remark I will observe that at the common law all felonies (murder inclusive) are punishable with death. But a clergyman, from the veneration in which the clerical character was held by the founders of our law, was exempted from the punishment of death if the bishop would claim him as a clerk, and of his being so, reading was the evidence. Hence came the benefit of clergy. In process of time this benefit was extended to all persons, and thence it came to pass that the most enormous crimes were unpunished. The Legislature, perceiving this, hath proceeded from time to time to take away the benefit of clergy from certain offenses. The consequence is that clergy is allowable in all felonies but where it has been expressly ousted by statute. The question therefore is reduced to this, is the benefit of clergy taken away from the offense of which the prisoner is convicted?
The statute, 23 Hen. VIII, ch. 1, ousteth clergy in cases of willful murder, of malice prepense. Our statute (1817, ch, 18) declares the offense of killing a slave shall thereafter be considered and denominated homicide, and shall partake of the same degree of guilt, when accompanied with the like circumstances, that homicide does at common law. The prisoner has been convicted of killing the slave Caleb with malice aforethought; and such a killing of a human being is, at the common law, murder. Of murder, therefore, is the prisoner guilty. The effect of the act of 1817 is to give to a slave the character of a human being, and to place him within the peace of the State as far as regards his life. This latter act, therefore, virtually declares this offense to be murder, and the statute, 23 Hen. VIII, takes away clergy. Nor does it make any difference whether the benefit of clergy be taken away by the same statute which creates the offense, or by any other, prior or subsequent. For (35) when the supreme authority creates an offense, giving it a well known legal and technical name, the offense assumes all the qualities of its name, that is, it becomes the thing the Legislature declares it shall be. Our statutes of bigamy, mentioned in the argument, bear no analogy to this case. The statute, 1790, provides that bigamy shall be felony, and that the felon shall suffer death; yet a person convicted under it was allowed his clergy, because it was not taken away by that or any other statute, and at common law it still remained. We are not, however, left to our own reasoning alone upon this question, the authorities are the same way. Foster, in his Treatise, lays down the law thus, Fost. Tr., 190, 191: The statute, de Clero, 25 Ed. III, provides that clerks convict for treasons or felonies touching all persons other than the king himself, or his royal majesty, shall have privilege of Holy Church. Treasons created by after statutes relative to the coin, the establishing of the king's regal and abolishing the papal supremacy, were ousted of clergy without express words, as coming within the exception of the statute de Clero, because they were treasons touching the king's royal majesty.
We are therefore of opinion that the prisoner is not entitled to the benefit of clergy, and that judgment of death be awarded against him.
Cited: S. v. Kimbrough, 13 N.C. 439; Norwood v. Marrow, 20 N.C. 589; S. v. Brandon, 53 N.C. 466; S. v. Penland, 61 N.C. 224; S. v. Vann, 82 N.C. 634; S. v. Reitz, 83 N.C. 637; S. v. Mills, 91 N.C. 596; S. v. Rhyne, 109 N.C. 795.
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