Murphy v. State

TRADING WITH SLAVES. Although it has been held1 that see. 2 of the act2 prohibiting trade and barter with slaves, which dispensed with the averment and proof of the kind of produce or commodity bought or sold, is invalid under sec. 2 of the bill of rights, yet, an indictment under this statute containing the necessary averments, is valid, and should be sustained. As a general rule, in civil as well as criminal cases, a person who is interested in the event of a suit or prosecution, is incompetent as a witness. But where the statute gives a reward for the conviction of offenders, or the witness as informer is entitled to a part of the fine imposed by statute on the accused; on the grounds of public policy, and for the purpose of bringing offenders to justice, such interested person is a competent witness in behalf of the prosecution. Eishee, J., dissenting. As a general rule, every material averment in the indictment must be proved; but it is unnecessary to prove the offense to the whole extent charged. It is sufficient to prove so much of the indictment as to show that the accused has committed the offense charged. The jury was instructed that “ if the slave came out with spirituous liquor which he did not take into defendant’s house, the defendant’s knowledge is .presumed; Held, that the instruction was correct. The identity of the slave nor his ownership is in anywise an ingredient in the offense of trading with slaves. But being alleged it is necessary that they should be satisfactorily proved.

Error to Madison circuit court. IIeniíy, J. Tbe plaintiff in error was indicted under the law approved March 6th, 1850, entitled, “ An act to suppress trade and barter with slaves, and for other purposes.” The indictment was found at the October term of the court below, 1854, and avers, “that Daniel W. Murphy, late of the county aforesaid, yeoman, on the 18th day of April, A. d., 1854, with force and arms at the county aforesaid, unlawfully, did then and there sell spirituous liquors, namely, whisky, rum, gin and brandy, to a certain slave named Allen, owned by Robert Love, without the consent in writing of the master, owner, overseer, employer or mistress of said slave, contrary to the form of the statute,” etc. The case was called for trial on the 17th of October, 1854, and the prisoner pleaded not guilty, and was put upon his trial. Thereupon the district attorney called as a witness, Henry It. Coulter, the prosecutor, and marked as such on the back of the indictment, who being sworn, the district attorney propounded a question to him, as to his knowledge of the charge in the indictment ; defendant objected to the answering of said question by said Coulter, and to said Coulter’s competency as a witness in the cause on account of the direct interest which said Coulter had in the result of said prosecution, the statute directing that one half of all the fines collected under the provisions of said act should be paid to the prosecutor. The court overruled this objection, and allowed the prosecutor to testify in the cause. To this ruling of the court defendant excepted. Witness then proceeded to state, that on the morning of April 18th, 1854, he was standing about three hundred feet from Murphy’s store, when he saw a mule-team wagon of Judge Robert Love, loaded with cotton, stop near him, with its driver, whom he thought was Judge Love’s Frank, but who, he learned afterwards froip Judge Love, that it was Allen, whom he knew was a slave of Judge Love; the wagon stopped near where witness was standing; the driver of the wagon took out of the wagon a bottle without a stopper, and witness tried to take it from him, but failed to do so; said driver jerked away from him, and went with his bottle into the house of said defendant’s store; witness saw said driver enter the front door of said Murphy’s said store, and after being there for some time, the said driver returned to his wagon with a bottle under his coat, and put the bottle back into the wagon. Witness proceeded to the wagon, took out the said bottle, and found whisky in it, which witness thought was the same bottle the driver had taken away with him. Judge Robert Love, a witness for the state, testified, that he had and owned a mule-team wagon, and a driver named Allen, on the 18th day of April, 1854, and that said driver was engaged in hauling cotton about that time. The defendant offered to prove by John B. Hemphill, the district attorney, who was in attendance on the grand jury which found and presented said indictment, that Henry R. Coulter, prosecutor, was the sole witness before the grand jury, and on whose testimony alone said bill of indictment was found; but the court ruled said proof to be illegal, and would not allow said Hemphill to answer said question or to be sworn in the cause for that purpose, to which ruling of the court, defendant excepted. Defendant did not introduce any evidence to the jury. The following instructions were asked by the defendant and refused by the court: 2d. “ The indictment charging the offense to be that the defendant did unlawfully sell spirituous liquors, namely, whisky, rum, gin and brandy, unless the jury believe from the evidence that the defendant did sell rum, whisky, gin and brandy, the law is for the defendant, and they will find him not guilty.” This instruction was modified and amended by the court as follows : “ But if the slave came out with spirituous liquor which he did not take in, the defendant’s knowledge is presumed.” 4th. “ Even if the jury should be satisfied that the slave got whisky out of defendant’s house, yet, unless the jury believe from the evidence that defendant knew of his so getting the whisky, the law is for the defendant, and the jury will find the defendant not guilty.” To the refusal of this instruction, and the modification of the court of the second instruction, defendant excepted. The jury returned a verdict of guilty. Defendant below moved in arrest of judgment, because there was no valid law or statute to found a judgment upon under a verdict rendered with such testimony and instructions. The court overruled the motion in arrest of judgment, and the defendant excepted. The defendant then made a motion for a new trial, because; 1, the jury found contrary to the law and evidence; 2, because the court erred in refusing defendant’s instructions; 8, because the court erred in allowing the prosecutor to be a witness, he having a direct interest in the result of the prosecution, as regulated by sec. 5, of the law of 1850; 4, because the court refused to let the district attorney answer the question whether Henry It. Coulter, the prosecutor, was not the only witness sworn before the grand jury, and upon whose testimony the indictment was found. Which motion fpr a new trial the court overruled; and the defendant having embodied the testimony in his bill of exceptions tendered the same to the action of the court in overruling said motion, and the same was signed, sealed, and enrolled, according to the statute. The defendant was modest enough not to ask that the jury must be satisfied before they could convict, or that the defendant did sell the commodity, or was present when it was sold; but he was content to ask that unless they were satisfied from the evidence that defendant knew of the commission of the offense, they must find for the defendant. But the court charged in this case (in which there is not a scintilla of proof that the defendant was in the store at the time, or where he was), that the presumption was that he knew of the negro getting the commodity which he had in his hands when he came out of the store, and that he got it in his store. History reads some sad lessons to the judicial mind as to what Draconic laws have been put upon the statute book to enforce some supposed “ necessity” of “ state” (the tyrant’s plea), or to sacrifice, in its diseased condition, to popular odium, some of its supposed enemies, and to punish even the innocent to get at the guilty, on that same “tyrant’s plea of necessity.” But the just judge of all ages has defied alike the depraved mandates of the excited populace, and the cruel behests of the tyrant,'and vindicated the august position of God; asks only, what is law, and here in America, especially, what says the written constitution ? That the legislature has gone too far in sec. 3 of the laws of 1850, pp. 101,102, we think that even a slight investigation of first principles will show. In every age and country of the civilized world, where the common law has been known, its humane maxims that crime “must be fully proved,” and that “ every person is presumed to be innocent until he is proved guilty,” are household words, known to the tyro and the citizen, as well as to the wisest of the bar—incorporated into jurisprudence, interwoven into the very net-work of society—truths as startling to deny, next to the denial of a future state of rewards and punishments, and of the soul’s accountability to God. Early and late, at the first dawn of legal science, in the reigns of the worst Tudors and Stuarts, before the American revolution and since, up to the last page put to press by the last author—these truths of the common law of England and America have never been doubted or called into question in the countries named until the passage of the law of 1850 in this ultra republican state of Mississippi. See Wills on Circumstantial Ev., 120, 121, 145; 3 Greenl. Ev., 29, 30. Where has a contrary opinion prevailed ? In countries of the civil law ? In countries of extorted confessions by thumb-screws and the rack, the iron boot and the boiling lead—places where the poor wretch is presumed guilty, and on that presumption is tortured until he confesses; in the dungeon of the bastile, and in the tyrant’s state prison, “where hope never comes that comes to all.” It was in one instance made to sully the pages of the statute law of old England, but it was driven from it in disgrace, amid the execrations of all honest men. It was that horrid law, which makes the blood curdle in the veins at its recital, which presumed the mother of an illegitimate child, when it died, guilty of infanticide, unless she could prove by one witness at least, that the child was born dead. "Wills on Circumstantial Evidence, 125. The crying injustice of condemning men in advance, of holding them guilty unless they proved themselves innocent, has been immortalized by Virgil, where he makes the common sybil lead his hero through his fabled hell. On his way'to the Elysian plain, the horrid sounds of Tartarus, surrounded by a triple wall, salute his ears; the clank of iron, the rattling of chains, the groans of anguish, the reverberations of the lash! Affrighted, he asks of his conductress, the meaning of those sounds, who the culprits, by what manner of punishments afflicted? The sybil replies, that “ no pure spirit can ' ever enter those accursed abodes. There the Cretan Khadamanthus holds his dreadful courts—he first punishes, and then hears the crimes, compelling the prisoner to confess,” etc. “ Nulli fas casto sceleratum insistere limen. . . Gnossius hgec Khadamanthus habet durissima regna Castigatque auditque dolos; subigitque fateri,” etc. —[6th lEnead. Now, what does this law of 1850, sec. 3. ch. 31, pp. 101, 102, do, but pursue the Khadamanthian system ? If a negro (in a county where two-thirds of the population are such) is seen going into a store and come out with an article which he might have purchased in it, the owner of the store is presumed guilty, and will be thrown into prison until he proves himself innocent; and that he may never be able to do this, the district attorney is allowed to select any day in three hundred and sixty-five, to prove that a negro was seen going into a store and come out. Is this according to the republican system established by our constitution? We think not. Among the sacred rights guaranteed in the declaration of rights in this state which, in the conclusion of that declaration, are “ excepted out of the general powers of government, and shall for ever remain inviolate,” is the right by sec. 10, to demand “ the nature and cause of the accusation,” “ to be confronted by the witnesses against him,” to have compulsory process for witness in his favor, and in all prosecutions by indictment or information, a speedy and “ public trial by an impartial jury,” of the county where the offense was committed; nor can he be deprived of his life, liberty, or property, “ but by due course of law.” Sec. 8, of the law of 1850, ch. 31, pp. 101, 102, does not confront a man with the witnesses against him; it condemns him without any witness; it does not give him a trial; the question of his guilt is not before the jury (as in other cases to be tried by them), on the evidene% adduced ; but he is already pronounced guilty before the trial begins. He is deprived of his liberty on each charge, from one to twelve months (see see. 1, ch. 31, Laws of 1850, p. 100), not by due course of law; for due course of law, at the time the constitution was framed, required that “ crime should be fully proved,” and not presumed. These views are susceptible of the clearest demonstration, by authority as well as reason. The number proper to constitute the tribunal called “jury” is nowhere defined in our constitution, and yet it is a term susceptible of the clearest definition, by reason of the common law when the constitution was adopted. To dispense with the necessity of proof is just as great a stretch of power as would be the legislative dispensing with the number of twelve men on the jury ; and we have authority for saying that, if the legislature were to prescribe as a jury a less number than twelve men, the law would be unconstitutional. Byrd v. State, 1 How., 177; 1 Tuck. Black., 60; 1 Thomas’ Coke, 8. The counsel for the prisoner requested in the court below, that the jury might know that the defendant must have had some knowledge of the offense to make him guilty. Even in the trial of the mob cases in 1780, Erskine took as the foundation of the defense of the deranged Lord George Gordon the maxim of the law for ages, the maxim of reason and of common sense, u Actus reum non facit nisi mens sit rea.” This maxim is nullified under this law. It is not only the keeper of the store that is to be punished, but, as in this case, the owner of the store. Now, the presumption of law is, that the owner would not violate the law ; that he carries on an honest traffic ; that, as retailing was not allowed, if the negro got any thing in the store, he must have got it (by watching his opportunity when the owner was absent) from some other person present. Under this law, though the defendant might have been asleep in another house, or he might have been otherwise absent from his store, so that it would be impossible to have presumed his presence; yet, unless he can prove that he was so absent on the particular day selected by the district attorney, he is made guilty of an offense which is itself presumed, and loses his liberty. It ought to be proved that die was present, that the deed was done, that he did it, that he was present when another did it, or at least that he knew of the crime and did not prevent it, but directly, indirectly, or tacitly connived at it. Unless these positions be correct, what becomes of the first principle of the law ¾ “ Nemo puni-tur •pro alieno delicto.,',‘ “ Nemo punitur sine injuria facto sen dfalto.” 2 Co. Inst., 287. In such way is a man to be punished by due course of law, for his own offenses proved and established; and until proved and established he is to be presumed innocent. No man can be said to have “ a trial ” of his case when he is already condemned without the production of a particle of proof to fix a crime upon him. Under this sec. 8, he has not a trial under the law on evidence, but remote facts only are proved from which the crime is to be presumed. And then a presumption is raised on that presumption that he did it, and his trial thus becomes a mockery, because in violation of the first principles of a fair “ trial.” He is not to be proved guilty, but he is to be taken as guilty in the outset, on the presumption of a crime being committed; and secondly, on the presumption that the prisoner did it, in outrage of the due course of law, which presumes him innocent until proved guilty. By section twenty-eight of the declaration of rights, “ the right of trial by jury shall remain inviolateunder the instructions founded on this law the jury being compelled to presume every thing against the prisoner, he has no more opportunity to be tried by jury than if the jury had been abolished. The law had as well have said, if a negro be seen going down the street, all persons there inhabiting must prove themselves innocent, or else they shall be presumed guilty. The fact of the negro going into a store is a perfectly innocent act; but as the negro was found with a commodity coming out, it is not to be presumed that he got the commodity himself, or got it from some person other than the defendant, but a crime is to be presumed, and the owner to be presumed the guilty agent. The innocent act is established, it is undoubted, it is undisputed; the consequences of guilt are not found by the jury on the evidence, but are found fastened by the law. Such proceeding is palpably unconstitutional, and has been pronounced so in similar cases by this court. Smith’s Admr. v. Smith, 1 How., 102-105. The trial by jury must remain inviolate, and the party cannot be deprived of his liberty, only by due course of law. Flournoy v. Smith et ah, 3 How., 62-65. The ablest courts will not allow constitutional rights to be frittered away by ingenious sophistries, but will adhere to the plain letter and the meaning attached thereto when the constitution was framed. Thompson v. Grand Gulf Railroad and Banking Go., 3 How., 247-250; Marbury v. Madison, 1 Cranch., 137 ; 1 S. O. TT. S. Condensed Reports, 267, 284, 285. The fearful consequences of declaring a state law unconstitutional were hurled at Chief Justice Marshall with great fierceness by a daring man, in the case of Craig et ah v. State of Missouri, 4 Peters, 410, 438. But the venerable and upright judge, in declaring the law unconstitutional, mildly replied to all the “ sound and fury ” about the consequences of the court’s so doing, “ These are considerations which address themselves to those departments which may with perfect propriety be influenced by them.” “ This department can listen only to the mandates of law, and can tread only that path which is marked out by duty.” 4 Peters, 438. In Craig v. State of Missouri, a man was most unconscionably seeking to take advantage of an unconstitutional law. The person may be vile; the principles to be struck down on his account may be sacred and of incalculable value to all the citizens as a community; and the only question for a just court is, What are the mandates of (constitutional) law ? What is the path marked out by duty ? Whenever the legislature is to look to who are good or bad citizens, apart from the crime itself, and make that apply to particulars which will not admit of universal enforcement, our liberties are at an end. In many respects this is an infaipous, iniquitous, tyrannical law, worthy of the worst days of the Stuarts and of the worst of the judges. A rigid enforcement of this would sweep it from the statute book in six days after the legislature met. . . Section three of the act is unconstitutional, because it makes a difference between the man whose store is also his dwelling-house and the man who has his store separate from his house. In the latter case the dwelling is the owner’s castle and is respected; crime is not presumed against its inmates. The offense has to be made out under the first section of the act as in other criminal cases, by being “ fully proved.” In the ease of a person who has a dwelling and store in the same house, it is made a crime against him for a particular class of persons to be seen entering his house, though such persons are the lawful inmates of every dwelling-house in the state. A difference is set up between different classes of citizens ; against one set crime has to be “ fully provedtowards the other set, crime may be presumed against the person charged, on the presumption that a crime has been done by somebody. This difference between classes of citizens falls directly under the condemnation of the declaration of rights, and is scouted with reprobation by the solemn adjudications of this court. Smith’s Admr. v. Smith, 1 How., 102-105. Striking at bad citizens may do for tyrants and their tools, but pure and enlightened courts never allow the constitutional rights of freemen to be crushed away on any such plea. John Wilkes, a member of the .British house ol commons, was a man of very bad private character (had he been a man of good character, Dr. Johnson says, he would have dethroned George III.) ; he was sent to the tower under the warrant of the secretary of state. He demanded of the court of King’s bench, through his counsel, his liberty by writ of habeas corpus, on the ground that the publication of a libel (which was the offense alleged) was not a breach of the peace, and that the privilege of parliament exempted him in all cases except in treason, felony, and breach of the peace. The state was in a diseased condition at the time (1763), and the necessity of enforcing the law was very great. But the able judges of the King’s bench looked only to the cause without regard to persons, and based their unanimous decision on the constitutional rights of the citizen, as if the purest man in tbe kingdom stood there before them. Chiéf Justice Pratt delivered the opinion of the court, and Baid in the conclusion of the opinion, “ I cannot find that a libeller is bound to find surety of the peace, nor ever was in any case except one, namely, the case of seven bishops, where the judges said that surety of the peace was required in the case of a libel; Judge Powell, the only honest man of the four judges, dissented, and I am bold to be of his opinion, that case is not law ; but it shows the miserable condition of the state at that time ; upon the whole it is absurd to require surety of the peace or bail, in the case of a libeller, and, therefore, Mr. 'Wilkes must be discharged from his imprisonment.” The King v. Wilkes, 2 Wilson R., 160. In the case of the State v. Borgman, reported in a note to 2 Nott & McCord R., 34-37, the views herein taken will be found in the main sustained, especially as to the constitutional necessity of connecting by proof the defendant with the crime, either by proving that the defendant participated in, or did the act, or was present when it was done, or tacitly approved of, or instigated it by his recognition of the act in permitting another habitually to do it in his employment, with his knowledge. • In this case, it is not proved that the defendant was in his store, knew of the crime, or that he had a clerk or negro through whom he transacted his business. It is evident from the proof that the district attorney designed to punish the defendant by aid and through the rigor of section three, as the keeper or owner of a storehouse. But as it has been said of persons designing certain bequests in a will, and failing to express their wish voluit sed non dieit, so it may be said here of the district attorney, voluit sed non fecit. The word storehouse nowhere appears in the indictment, nor any thing like it. The statutory, indispensable words, “ or keeper or owner of such storehouse,” nowhere appear. The presumptions of section three can be of no service against any one except against persons “ owning or keeping a storehouse, warehouse, tippling-shop, or other place fitted up or kept for trading.” § 3, p. 101. It is only against “ a person owning or keeping such storehouse,” etc., that the going in and coming out of a negro with something he might have purchased therein, is “ presumptive evidence” of guilt. § 3, p. 102. No matter what the proof was in this cause, yet to bring the party within the purview of the provisions of section three, it is altogether essential that the language of the statute “ creating the offense,” should have been pursued. The court charged on section three; the case was pressed under section three by the state, and the proof was made to fit section three. Yet it is very evident from the averments of the indictment, that the presumptions of section three were all illegally applied, and to have had advantage of “ presumptive evidence ” against the defendant, it should have charged that the defendant was the owner or keeper of a certain storehouse, and that the slave did bring out of such storehouse a certain commodity, which said defendant sold to said slave in said storehouse, without permission, etc., contra formam, etc., etc., so that the court might see that the proof sustained the charge, and that judgment and punishment were applied where the law prescribed, and to do this there must appear on the record the offense charged in the language of the statute. 1 Chitty Cr. Law, 168, 169, 171, 281-283 ; Anthony v. State, 13 S. & M., 264, 265 ; Starkie Cr. PI., 252, 253. From the averments in the indictment, the court is constrained by the rules of criminal pleading, and the benefits of a fair trial, as provided in the authorities last referred to, to make the case fall under section first, and not under section three. Murphy’s house is not averred to be “ a storehouse the defendant is not averred to have been keeping or owning such storehouse at the time of the commission of the offense. Is the testmaony, then, sufficient in this case to convict any citizen in the state independent of all considerations of his being “ a storehouse owner or a shop-keeper ?” 1. The law under which the indictment in this cage was found, is a stringent police regulation, it is true, to preserve a peculiar’ class of our population, and when once promulgated is as binding as any other law. The court silently ignore this objection to this law in 24 Miss. R.. 590. 2. When it is plain the infliction of a fine or penalty is intended as punishment in furtherance of public justice, rather than as an indemnity to.the party injured, or to secure a mere pecuniary benefit to the prosecutor, and that the detection and conviction of the offender are the objects of the legislature, the case will be within the exception, and the person benefited by the conviction, will, notwithstanding his interest, be competent. 1 Greenl. Ev., 412; 3 McLain, 53, 299; 16 Peters, 203 ; 1 Bald., 90 ; 9 Barn. & Cress., 556.