Norris v. State

2 Morr. St. Cas. 1059, 33 Miss. 373

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

Opinions

Fisher, J.:

This was an indictment in the circuit court of Madison county, charging the defendant with stealing a certain slave.

The indictment, consisting of several counts, charges the offense to have been committed in Madison county, and the court was accordingly asked on the trial to instruct the jury that unless they were satisfied the offense was committed in said county they should acquit the defendant; which instruction the court refused to give, and which refusal presents the most important question arising out of the evidence for our decision.

The evidence tended strongly to show that if the defendant were guilty at all of the larceny, he had stolen the slave in the state of Arkansas, and had brought him to the county of Madison in this state; and the court, no doubt believing the defendant under this evidence could be convicted under a provision of the statute, which will be hereafter noticed, refused the instruction on the ground that it confined the action of the jury merely to one branch of the testimony, when it was believed to be competent for them to consider it as a whole, and if they believed it as a whole to be time, to convict instead of acquitting the defendant. The statute above referred to is as follows: “ Every person who shall feloniously steal the property of another, in any other state or country, and shall bring the same into this state, may be convicted and punished in the same manner as if such larceny had been committed in this state; and in every such case such larceny may be charged to have been committed in any town, city, or county into or through which such stolen property shall have been brought.” “ Every person presented under the above section may plead a former conviction or acquittal for the same offense in another state or country.” Hutch. Code, § 4, 5, p. 981. The indictment in this case merely charges the defendant with larceny in the county of Madison, and makes no mention of an offense in another state, and a bringing of the stolen property into this state.

The question, therefore, is not whether the testimony establishes an offense bringing the defendant within the provisions of the statute, but whether the indictment sufficiently charges him with the commission of such offence; for if not, it matters not how clear the proof may have been, it could not, under any just rule, establish more than the indictment itself charges. An indictment for a larceny committed in the county of Madison, in this state, in the usual form, and containing only the usual averments of such an indictment, wholly fails to give the defendant the least notice of an offense against the statute above quoted; for to constitute an offense against the statute there must be both a stealing of the property in another state or country, and a bringing of it into this state; and these facts both being necessary to constitute the offense, must be sufficiently set forth in the indictment in order not only to conform to a well-established rule of pleading, that the facts which constitute the crime or cause of action must be alleged with sufficient certainty, but that the accused may know what it is that he is called on to answer, so that he may prepare for his defense accordingly. Such, certainly, is the spirit of the Constitution, and the right which it intended to secure to the accused in criminal prosecutions when it declares'that “he hath a right to demand the nature and cause of the accusation” against him.

The government, in engrafting this provision upon its organic law, did not, as is by some erroneously supposed, proceed upon a principle of tenderness for those actually guilty of crime, but upon a more wise and humane principle, sanctioned by the experience of ages, that an innocent person may be unjustly accused of crime, and to afford him an ample opportunity, when so accused, to vindicate his innocence. If government could be absolutely assured that none but the really guilty would ever be put upon their trial for crime, it would perhaps not trouble itself to prescribe rules to govern such trials ; but as this is utterly impossible, it must act upon the principle, as far as possible, of protecting the innocent, and punishing only the guilty; and almost all the rules which govern courts on the trials of criminal prosecutions, have their origin in this principle.

The object is not to screen the guilty, but to protect the innocent; and, by departing from a rule supported by the clearest dictates of reason, while it may be true that the guilty will but seldom, if ever, escape punishment, yet it may be equally true, that the innocent may, with almost equal facility, in many cases, be convicted, and unjustly suffer a punishment designed by the law for criminals only. It is, however, said, that the indictment in this case conforms to the provision of the statute which declares that the party may be indicted for a larceny at the place to which he shall have brought the property. This provision must be construed with reference to the other provisions of the statute. For instance, this is a good common law indictment, charging the defendant with a larceny committed in Madison county, but saying nothing concerning a larceny committed in another state. Now suppose the defendant had interposed a plea to the indictment, that he had been tried in a certain court in the state of Arkansas in regard to the larceny charged in the indictment, and had been acquitted ; would the plea have been considered as a good answer to such indictment ? Most certainly not; for the obvious reason, that the indictment did not charge him with an offense committed in Arkansas, and that the acquittal there was no answer to a prosecution for an offense committed in another state. Or suppose that he had been tried in Arkansas, and had been convicted, and had, after receiving the punishment under the laws of that state, brought the property to Madison county, in this state. Here there would be both a stealing in another state and a bringing of the property into this state; but the law declares that this shall not be an offense against our law, and why? Because he had already been punished for the larceny in another state. Now, suppose he had pleaded this conviction as a defense to the indictment, would the plea have been received ? Most certainly not; and why ? Because the indictment presents no such case, but merely a case of larceny in the county of Madison. Or, if such a plea could be treated as good, why could not the defendant plead it to every common law indictment for larceny, and thus often delay the trial with an immaterial issue ? The fifth section ■ of the statute declares, that every person presented under the fourth section may plead an acquittal or conviction in another state or county. What does this section mean, when it declares that every person presented under the fourth section may interpose these matters in his defense ? Most clearly it refers to a case where the indictment shows on its face that the accused is charged with an offense against the fourth section of the law. The defence, under the fifth section, can only be made when the prosecution is brought, by the terms of the indictment, within the provisions of the fourth section; and what is, therefore, the obvious meaning of the two sections as a whole ? Clearly, that if the party is prosecuted for a violation of the fourth section, the indictment must so charge him, otherwise he could not avail himself of the benefit of the various matters in defense secured under the fifth section.

We are, therefore, of opinion that the court erred in refusing to give this instruction.

We are of opinion, that the court committed no error in refusing the other instruction, relating to the ownership of the slave.

Judgment reversed, and new trial granted.