Murphy v. State

1 Morr. St. Cas. 765, 28 Miss. 637

• Court: Mississippi Supreme Court
• Decided: July 1, 1872
• Status: Published

Opinions

Smith, C. J.:

The plaintiff in error was indicted and convicted under the act of the 6th of March, 1850, “ to suppress trade and barter with slaves.”

Several exceptions are now urged to the validity of the judgment.

■ 1. It is insisted that the court below erred in overruling the motion in arrest of judgment. The reason assigned in support of that motion, denies the constitutionality of the act, under which the indictment was framed.

The same objection was made in Murphy v. The State, 24 Miss. R., 590. In that case, the question arose on a motion to quash the indictment, which was framed under the same statute. On that occasion, this court entertained no doubt of the constitutional power of the legislature to declare that it would be criminal to commit any of the acts enumerated in the first section of the statute, and consequently to provide for the punishment of the offenders in the mode provided. It was held, also, that indictments for the offenses defined in the first section, “ framed in the general manner indicated in the second section,” would be invalid, inasmuch as an indictment thus framed, and which would consequently contain no allegation of the character or quantity of the produce alleged to have been sold or received, nor of the name of the slave with whom the illegal traffic was had, nor of the name of the owner of such slave, would violate the right secured by the tenth section of the bill of rights to the accused, to demand the “ nature and cause of the accusation against him.”

In the case at bar, the date of the offense, the character of the commodity, the name of the slave and his owner are alleged in the indictment. There can, therefore, be no doubt, under the previous decisions of this court, that- the motion in arrest of judgment was properly overruled.

2. On the trial, Henry R. Coulter, the prosecutor, whose name was endorsed on the indictment, was offered as a witness for the prosecution. His examination was objected to by the defendant on the ground that he was interested in the event of the suit. The objection was overruled, and the defendant excepted. The competency of this witness is the next question for our consideration.

The first section of the act, under which the plaintiff in error was convicted, provides, that upon the conviction for any of the offenses therein defined, the party convicted “ shall be fined in a sum not less than fifty dollars, nor more than five hundred dollars.” The fifth section directs that “ one half of all the fines collected under the provisions of this act, shall be paid to the prosecutor, and the other half to be appropriated to the common school fund of the county.”

It is very manifest, under these provisions, that the witness examined on the trial below, had a direct interest in the result of the prosecution. The question arising here is: Did that interest render him incompetent as a witness for the prosecution ?

It is unquestionably true, as a general rule, in civil as well as in criminal cases, that a person interested in the event of a suit or prosecution, is not a competent witness. Thus, where a penalty is imposed by statute, and the whole or a part is given to the informer or prosecutor, who becomes entitled to it forthwith upon the conviction, he is not, at common law, a competent witness for the prosecution. Roscoe Cr. Ev., 126; Greenl. Ev., 472, §403. But there are many recognized exceptions which are said to be as old as the rule, itself. Thus, it is stated as a .clear exception, that where a statute can receive no execution, unless a party interested be a witness, then he must be allowed. This exception to the general rule is based upon the presumption, that the rules of the common law are laid aside by the statute, that it may have effect, which would be otherwise wholly defeated. Gilbert Ev., 114. So cases of necessity, where no other evidence can be reasonably expected, have been from the earliest periods recognized as another exception. Thus, for example, in prosecutions for robbery, the pefson robbed is a competent witness for the prosecution, although he will, upon conviction of the offender, be entitled to a restitution of his goods. Greenl. Ev., 480, § 412. Another exception is that of a person who is to receive a reward for or upon the conviction of the offender. A person thus situated, is universally recognized as a competent witness, whether the reward be offered by the public or by private persons. “ The ease of a reward (says Mr. Justice Bayley) is clear on the grounds of public policy, with a view to the public interest; and because of the principles upon which such rewards are given. The public has an interest in the suppression of crime, and the conviction of criminals. It is with a view to stir up greater vigilance in apprehending, that rewards are given; and it would defeat the object of the legislature by means of those rewards to narrow the means of conviction, and to exclude testimony which would be otherwise admissible.” Rex v. Williams,117 Com. Law R., 440.

Where a penalty, given by statute, is recoverable on the indictment itself) so that the person entitled to the penalty is not driven to a suit, his title thereto gives such an interest as will render him incompetent as a witness. But if the act by which the penalty is given to the informer, prosecutor, or other person, contemplates his being a witness, his competency is of course continued ; and it is clear, that it is not necessary there should be an express legislative declaration to that effect, but that the court may infer such intention from the language of the statute or its professed objects. Oases of this description are recognized as another exception to the rule at common law. Murphy v. United States, 16 Peters R., 211; Rex v. Trasdale, 3 Esp. R., 68; Howard v. Shipley, 4 East R., 180.

It is insisted in behalf of the state, that the case at bar falls within the principle of this last exception; that there has been, although no express words to that effect are contained in the statute, “ a legislative capacitation given” to the prosecutor.

In Rex v. Williams, it was said by Mr. Justice Bayley, “Where it is plain 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.” This language was quoted with entire approbation by Judge Story in Murphy v. The United States; and the rule is laid down in almost the same terms in Grcenleafis Evidence, 480, § 12.

It is very manifest, if this rule is to determine the question under consideration, that the prosecutor, notwithstanding he had a direct and certain interest in the event of the prosecution, was a competent witness. For it cannot be doubted, that the detection and conviction of offenders were the objects of the legislature, and not the private benefit of the prosecutor. But, if this rule is applied as the test of the competency of persons who are to be benefited by the conviction of offenders, there is no case in which a person, having a direct and certain interest in the event of the prosecution, unless rendered incompetent by express legislative. declaration, would not be competent. For the manifest reason, that the presumption is not to be entertained, that the legislature would create an offense and impose a penalty with any other view than the public good, or that the penalty would be given to the informer or prosecutor for any other purpose than that of promoting the detection and conviction of offenders. The rule, as laid down in Bex v. Bayley, does not appear to be sustained by the cases cited in the opinion of the court, and is not defensible upon principle. And although it has received the approval of some high authorities in this country, we are not prepared to give it our sanction ; as it is evident that its recognition and application would effectually annul the unquestioned principle of the common law, that where the penalty is recoverable on the indictment itself, and the informer or prosecutor is not driven to a suit, he is, in consequence of his title to the penalty, rendered incompetent as a witness.

The question then is: Can it be implied, from the particular provisions and policy of the act, that the legislature intended to make the prosecutor a competent witness in prosecutions for offenses under the act ?

The statute against bribery, 2 Geo. II., ch. 24, § 8, provided, that any offender against the act discovering, witbin a certain time, any other offender within the act, so that the person so discovered be thereupon convicted, the discoverer not having been before the time himself convicted of the offense, shall be indemnified and discharged of all penalties and disabilities incurred under the act; that is, he should have the benefit of using the verdict against the other offender for his own indemnity. Under the particular provisions and policy of that statute, it was held, that the discoverer was a competent witness for the plsfintiff-in an action for the recovery of the penalty imposed by the act. In the language of Lord Ellenborough, “ a parliamentary capaci-taron was given to the witness through whom the fact' is discovered, and who might otherwise at common law have been incapacitated.” Howard v. Shipley, 4 East R., 180. In Rex v. Trasdale, which was an indictment on the 21 Geo. III., ch. 37, § 1, for exporting machines used in the manufactures of that country. By the statute, the offender, upon conviction, was to forfeit the machines, etc., and also £200. The forfeitures, where not otherwise provided, were to go to the informer. The-informer was called as a witness, and objected to on the ground of interest. The objection was overruled by Lord Kenyon, who considered the term “ informer” in 21 Geo. III., as equivalent to the term “person discovering” in 2 Geo. II., ch. 24, § 8; and as it had been decided, that the legislature must have intended, that the person designated as the “ person, discovering” in the one case should be a witness, it must be taken it had the same intention as to the person designated by the word “ informer” in the other. 3 Esp. R., 68; 17 Com. L. R., 448. Both of these cases were cases of secrecy, and the detection and punishment of the violators of these statutes deemed of great importance to the public. The terms “ discoverer” and “ informer,” as employed in the English statutes, implied a personal knowledge of the criminal act sought to be detected and punished. Hence, the courts were doubtless justified in holding, that the witnesses were made competent by a parliamentary declaration ; for, if the witnesses offered on those occasions had been excluded on the ground of their interest in the event of the prosecution, the provision would have been rendered nugatory and useless. It would have been holding out inducements to persons to discover offenses committed in violation of the statute, and to inform upon the offenders, when, by the operation of the common law rule, the discoverer and informer would be excluded from the rewards proffered by the statutes themselves.

But, it is insisted, that- the term “ prosecutor” does not generally and necessarily imply a knowledge of the criminal act charged in the indictment; hence, that the rule laid down in the. English cases above cited ought not to be applied to the case at bar.

The illicit traffic with slaves is an evil, in this community, of great magnitude. Acts in violation of the statute on the subject are committed in secret, generally at night, and always in the absence of the owner of the slave, who is the person most seriously affected. The history of the legislation on this subject, and of the criminal jurisprudence, furnish unmistakable evidence of the difficulty encountered in the detection and punishment of offenders under the existing laws. The consequent impunity with" which illegal trading with slaves was carried on, not less than its ruinous consequences, led to the adoption of the statute, remarkable for its stringent provisions, under which this indictment was framed. Whilst, therefore, it may be conceded, that the prosecutor is not presumed, necessarily, to have a personal knowledge of the offense charged, and hence, that the term is not used in our statute in a sense equivalent to the term “ discoverer,” as employed in the English statute against bribery, nevertheless we cannot doubt, from our view of the particular provisions and policy of the statute, that they amount to a legislative declaration, that the person prosecuting for an offense, under the act, may be a witness against the party charged. A different construction, instead of advancing the objects of the act, would narrow the means of the detection and punishment of offenders, by taking away the inducement held out by the legislature, with the view of stirring up greater vigilance, in bringing them to justice ; for it is manifest, if the expectation of sharing the penalty consequent upon conviction is the operative motive with the prosecutor, and the provision is based upon that supposition, it is unreasonable and illogical to expect that any person would act the part of an informer or prosecutor, without hope of being remunerated. For that reason, as well as from the character of the offense, and the secrecy with which it may always be committed, it is greatly to be apprehended, if the prosecutor should be excluded as a witness, that the statute itself will fail of any beneficial execution, We feel fully justified, therefore, in holding that the objection to the competency of the witness was properly overruled.

3. The court was requested by the defendant to charge the jury, “ that unless they believed from the evidence, that the defendant did sell whisky, gin, rum, and brandy, the law is for the defendant, and the jury will acquit him.” The refusal of the court to give this charge is excepted to. The indictment charged the illegal sale of whisky, gin, rum, and brandy to a slave.

The general rule is, that every material averment in the indictment must be proved; but it is generally unnecessary to prove the offense to the whole extent charged. It is invariably sufficient to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified. Rex v. Hunt, 2 Camp. R., 585; Swinney v. The State, 8 S. & M., 576. Proof, therefore, that either whisky, gin, rum, or brandy was sold to the slave by defendant, would have authorized a conviction. There was, hence, no error in withholding the instruction.

4. The court was further asked to charge that “ even if the jury were satisfied that the slave got whisky out of defendant’s house, yet, unless the jury believe from the evidence, that defendant knew of his getting the whisky, the law is for the defendant, and the jury will find the defendant not guilty.”

This instruction was given, qualified by adding to it the following words: “ But if the slave «ame out with spirituous liquor, which he did not take into the defendant’s house, the defendant’s knowledge is presumed.”

The charge, as modified, was correct. It is in strict accordance with the fifth clause of the third section of the act; which, upon the proof before the jury, raised the presumption of the defendant’s guilt, as charged in the indictment, upon the proof made, that the slave obtained the whisky from the store of the defendant. If the ownership of the slave was sufficiently established, the jury, in the absence of all opposing testimony were bound to convict, unless the provisions of the third section of the act are void. In our opinion they are not so. Those provisions may be extremely unwise and impolitic. They are certainly rigorous and harsh ; but we are not prepared to say with counsel, that the legislature, in the enactment of them, transcended their constitutional authority.

5. It is, in the last place, objected that the court erred in overruling the motion for a new trial.

According to the rule of evidence laid down by the third section, the proof was complete of the commission of an offense, when it was shown by the testimony that a slave had obtained the whisky from the store of the defendant. Neither the identity of the slave nor his ownership was in anywise an ingredient in the offense for which the defendant was indicted. But, being alleged, it was necessary that they should be satisfactorily proved. It is clear, however, that the same strictness is not required in the proof of an averment of that character, which is requisite in the establishment of the corpus delicti, except in cases where the subject of the averment is a record or a written agreement. Applying this rule, we think the verdict ought not to be disturbed.

Let the judgment be affirmed.

Handy, J., concurred.