State v. Sparrow

¶1The indictment charges, that the Defendants, on a certain day and year, at and in the county of Craven, one male slave named Jack Battle, feloniously and by seduction, did take and convey away; and the reason in arrest of judgment is, that it is not stated with sufficient explicitness, that the seduction and taking and conveying away, were in the county of Craven : and precedents of indictments have been cited to show, that in every case of larceny, the words, “ then and there being,” are se^ forth after the thing stolen is described. Now, although it is true, that precedents are high authority as to what the law is, yet in this case, they only prove, that they cpntain these words ; for it is certain, that most of them contain many things which never were essential, and some they retain which long since have become useless, as the words “ moved and seduced by the instigation of the Devil,” and “ in the peace of God : ’ and in indictments for perjury, they conclude “ to the great dipleasure of Almighty God again, in homicide, the value of the instrument occasioning the death, which formerly was forfeited as a deodandL It is not therefore conclusive, that no indictment is good which departs in any particular from the pcecedents. The truth is, that their sufficencyis referable to no precise .standard,but must, in every case, depend upon common *95Sense and the plain reason of the thing, as Haxuktns expresses it, and which can only be applied to general principles, and the leading ones upon this Subject are, that nothing material in constituting the offence, shall be taken by inference, or by intendment, as the law writers express it, but must be positively alleged, and that those things which are material, shall be alleged with all the circumstances which they themselves presuppose; as when a stroke constitutes the offence, and is therefore material, it must be positively stated to be given—for instance, “ did strike, or to use the phrase usually mentioned “ per cussit,” and at what time and place; and when so alleged, it must be stated in what manner, or with which hand. So wheii a iwound occasions the death, and is therefore stated, as it presupposes length, breadth, and depth, they must be Stated : But where a bruise is alleged, as that presupposes neither, it in itself is sufficient as to the manner; and the great difficulty in most of the cases is, in ascertaining whether the facts are so alleged.

¶2The design of the law in requiring these niceties, is, to triable the Defendant to make defence, by meeting the charge ; that the Jury may appear to be warranted in the conclusion they have drawn, and that the Court may see such a definite crime, as to apply the punishment which the law has prescribed ; and Lord Coke, upon this subject, has said that nimia Subti litas in Jure reprohatur; and Lord Chief Justice De Gray has also said, that the only true rule was, “ that the Court and Jury must understand the record as the rest of the world do.”

¶3In cases of murder, the books say, that charging the assault with malice, on a particular day and year and place, there is no necessity, in the following clause, which states the stroke, to repeat that it was given with malice^lf the words “ then and there” be used. Now, in such case, it is clear, that the stroke -with malice, can be more explicitly stated, and it is only made so, by being given at the *96samé 'time and place of the assault; and the reason they as* sign is,that a repetition would produce too much tautology* But where the Jury only find a conclusion, as that the prisoner murdered the deceased, the guilt can only be inferred, by supposing the Jury were judges of the law, and knew what constituted murder; but a finding that one man at a certain place, and on a certain day and year, assaulted another, as to the assault, as “ explicitly” affirms that the person assaulted Was there, as the English language is capable of, without incumbering a plain meaning with supernumerary words ; for the fact found (and not a conclusion) includes the presence of the party assaulted* When an indictment charges that A assaulted B with a sword, and cut off his right arm, surely it does include that B there had a right arm. The act of taking and con* vey'mg away. therefore, necessarily includes that the thing, when so taken, was there. The force of the objection, therefore, when examining this indictment, is to my mind, totally without foundation. Lord Coke says, there are three kinds of certainties in judicial proceedings ; certainty to a common intent, certainty to a certain intent' !h general, and certainty to á Certain intent in evefy particular : The first is required' in pleas, the second in indictments, and the third only in cases of estoppel.' The doubt, I think, has been occasioned by a supposed analogy between this and Cotten's case, reported by Croke, and noticed by Hale, in his History of Bleas of the Crown. Thére, Cotten was indicted fot murder,' and the indictment stated, that at a certain place and time, Cotten, the prisoner, having an axe in his hand, struck one Mary Spencer, whereof she died. In that case, the Court held, that the stroke was not stated to have been given on any particular day, or at any particular place ; and astte stroke consfñuted the offence, according to the rule already laid down, as every act presupposes time and place, they must be stated. Now, upon an examination of Cotten's case, *97arid divers others where the words adtunc et ibidem were held necessary, it was always in compliance with this rule, and not with a view of locating the object so as to make that present, when it is charged to be acted upon ; but for the purpose of confining it when acted to a time and place antecedently stated. And in this very case of Cot-ten's, the Court determined, that alleging, that on a certain day and place, the prisoner having an axe, did necessarily find that the axe was there ; for, say they, it only appears by the indictment, that the prisoner had the axe on the day and place mentioned ; but it dots not appear when or where the stroke was given. Cotten's case, therefore, as far as it is any authority, seems to me in support of the present indictment.

¶4If this indictment had charged, that the prisoners, dn the day and place mentioned, had seduced, or did seduce the slave, and that they “ did take and convey him away,” then, according to Cotten's case, the adtunc fc? ibidem would have been ’necessary to connect the latter acts with the first; for the time and place would then only relate to the jirst act—the first act, in this indictment, is the taking and conveying away, therefore they do relate to them.

¶5A case \vhich approaches near the present, is Hey don't, reported by Lord Coke, where the indictment charged, that Heydon and others, at a certain day and place, of their malice aforethought and as felons, in dictum Edwd* Savage adtunc et ibidem (and not “ existente"j insultum et ajfrariumfeceruntand many objections were taken to the indictment; and amongst others, that the indictment did not state the deceased was in the peace of God. But it did not there occur to the Counsel or Court, as material to allege, that when the assault was made upon the deceased, he was there—existente—though confessedly to be found in most of the precedents. I cannot, therefore, bring my mind to doubt upon the score of authority ; and *98as to the result to be derived from an application of tntí rules of common sense, and the reason of things, which Hawkins maintains is the true rule, I think there can be no diveisity there. I am, therefore, clearly of opinion, that the indictment is sufficient; that it doth allege, that the slave in the County of Craven, on a certain day, was by seduction taken and conveyed away, and that the Prisoners are also alleged to be the perpetrators thereof, and therefore, there should be Judgment for the State.