[571]*571
By the Court-
Warner, Judge.
The first ground of error assigned in the case is, that the court erred in refusing to permit the juror, when sworn on his voire dire, to bo asked if he had formed any opinion as to the guilt or innocence of the prisoner at the bar : because the Constitution of the State of Georgia provides, that ‘trial by jury, as heretofore used in this State shall remain inviolate and the court by its decision, excluded the prisoner from the benefit of the challenge 'propter affectum,’ which was an existing ground of challenge at the time of the adoption of the Constitution."
That the right to challenge a juror "propter affectum," existed in this State at the time of the adoption of the Constitution in 1798, is readily admitted, (3 Bl. Com. 362 ; ) but how the prisoner was deprived of that right, by the refusal of the court to permit him to show such cause of challenge by the juror himself, under the provisions of our penal code, as now amended by the act of 1843, is not so clearly apparent.
The act of 1843 repealed that portion of the act of 1833, which permitted the question to be asked the juror on his voire dire, if he had formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar ; so that the prisoner had no right to show such cause of challenge by the juror himself, as the court below, in our judgment very properly ruled.
It is true, the act of 1843 prescribes certain questions to be propounded to the juror, but it also provides, if he shall answer them in the negative, “the State, or the prisoner, may have the right to put such juror on his trial, in the manner pointed out hy law, and prove such juror incompetent."
The record in this case shows, the juror answered the questions, required by the act of 1843, in the negative ; then it was the privilege of the prisoner to have asked the court for the appointment of triers, for the purpose of showing the juror was incompetent, which does not appear to have been done. The act of 1843 does not take away the right to challenge a juror “propter affectum,” but only prescribes the manner in which that right shall he exercised.
The counsel proposed to show cause of challenge, “ propter affectum," by the juror himself, but the court very properly decided ho could not do so, as the act of 1843 requires triers to be appointed, and the cause of challenge to be shown before them ; either principal cause of challenge, or challenge to the favor.
It does not follow because the court refused the prisoner the right to show caitse of challenge, “propter affectum,” by the juror himself, the right of such challenge was denied him altogether, for it does not appear ho applied to the court for the appointment of triors.
By the common law, the principal cause of challenge was tried by the court, and challenges to the favor only, were tried hy triers, appointed by the court. —5 Bacon's Ab. 366.
The act of 1843, however, seemed to contemplate when the juror shall answer the questions required to he propounded by it, so as to make Mm prima facie competent, all further investigation, as to causes of [572]*572challenge, either principal or to the favor, shall be submitted to triers, and be determined by them.
The second ground of error assigned is, that the court “ repelled •evidence, that at the time of the purchase of the negro slave, (the subject of the alleged larceny,) at, sheriff’s sale, by Samuel Buffington, sen., (the prosecutor,) the same was sold under the encumbrance of a mortgage) because such testimony ascertained the fact that the property acquired in and to said negro, by the prosecutor, under said purchase, was not absolute, but limited and special, and the prisoner would.be at liberty to show in his defence, not only the value ol Such special property, but that the same was determined to disprove the allegations in the indictment, that said slave was the property oj Samuel Buffington, Sr., and of the value of five hundred dollars.-’’
The third ground of error assigned by the plaintiff is, that “ the court erred, in not admitting the mortgage fi. /a., bill, and accompanying papers — among them the original mortgage, with the decree of foreclosure— when tendered in evidence on the part of the prisoner ; because they went to prove that the equity of redemption in and to said slave was barred and foreclosed; and the entry by the sheriff thereon proved., that at the time of the alleged larceny, the said prosecutor had no property whatever in said negro, and that he was not entitled even to the legal possession of said negro.”
The fourth ground of error assigned upon, the record is, that “the court erred in refusing to 'admit the mortgage fi. fa. in evidence, when offered on the part of the prisoner,because the entries thereon established the fact, that the negro slave, the subject of the alleged larceny, had been levied on as the property of the prisoner, and a claim had been interposed by the prosecutor, which said claim being withdrawn, and the levy yet undisposed of, negatived the allegation in the instrument., that said slave was the property of the prosecutor.”
It appears the slave George was mortgaged by the prisoner tc Tucker. Afterwards, the slave was levied upon by virtue of an execution, issued upon a judgment obtained against the. prisoner, which war of later date than the mortgage, and sold at sheriff’s sale as the proerty of prisoner, and purchased by the prosecutor, subject to the encumbrance of'said mortgage, who acquired by such purchase, all the title which remained in the prisoner to said negro'; and when he paid, the debt to Tucker, which the mortgage was given to secure, there if, nothing which appears on the record, going to show that his title to the; slave would not have been good against everybody.
The counsel for the plaintiff in error assumes the ground, and makes i , the basis of his argument, that the legal title to the slave was in Tucker, the mortgagee, after condition broken. This court has already decide;, that by our law of mortgage, the title to the mortgaged property remains in the mortgagor until foreclosure and sale thereof, in the manner pointec out by statute ; that a mortgage is a security for the debt. The lega, title to the slave enjoyed by the prisoner was divested by the sheriff’;; sale, and passed to the prosecutor, who was the purchaser, and who tbur. acquired the possession of him.
It is true, before the title of the prosecutor to the negro was perfect as against Tucker’s mortgage, he would be bound to discharge the debt, [573]*573which the mortgage was given to secure; to raise the encumbrance created by the mortgage ; but with that the prisoner had nothing to do ; his title to the negro was sold by the sheriff, and purchased by the prosecutor, who had something more than a mere special property in the negro as against the prisoner. But if the prosecutor had only a special property in the negro, coupled with the lawful possession, it would be sufficient to maintain the allegation in the indictment. — Packard's case, 2d East Pleas Crown, 653; 1 Leach, 357; Roscoe’s Crim. Ev. 515.
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[571]*571
By the Court-
Warner, Judge.
The first ground of error assigned in the case is, that the court erred in refusing to permit the juror, when sworn on his voire dire, to bo asked if he had formed any opinion as to the guilt or innocence of the prisoner at the bar : because the Constitution of the State of Georgia provides, that ‘trial by jury, as heretofore used in this State shall remain inviolate and the court by its decision, excluded the prisoner from the benefit of the challenge 'propter affectum,’ which was an existing ground of challenge at the time of the adoption of the Constitution."
That the right to challenge a juror "propter affectum," existed in this State at the time of the adoption of the Constitution in 1798, is readily admitted, (3 Bl. Com. 362 ; ) but how the prisoner was deprived of that right, by the refusal of the court to permit him to show such cause of challenge by the juror himself, under the provisions of our penal code, as now amended by the act of 1843, is not so clearly apparent.
The act of 1843 repealed that portion of the act of 1833, which permitted the question to be asked the juror on his voire dire, if he had formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar ; so that the prisoner had no right to show such cause of challenge by the juror himself, as the court below, in our judgment very properly ruled.
It is true, the act of 1843 prescribes certain questions to be propounded to the juror, but it also provides, if he shall answer them in the negative, “the State, or the prisoner, may have the right to put such juror on his trial, in the manner pointed out hy law, and prove such juror incompetent."
The record in this case shows, the juror answered the questions, required by the act of 1843, in the negative ; then it was the privilege of the prisoner to have asked the court for the appointment of triers, for the purpose of showing the juror was incompetent, which does not appear to have been done. The act of 1843 does not take away the right to challenge a juror “propter affectum,” but only prescribes the manner in which that right shall he exercised.
The counsel proposed to show cause of challenge, “ propter affectum," by the juror himself, but the court very properly decided ho could not do so, as the act of 1843 requires triers to be appointed, and the cause of challenge to be shown before them ; either principal cause of challenge, or challenge to the favor.
It does not follow because the court refused the prisoner the right to show caitse of challenge, “propter affectum,” by the juror himself, the right of such challenge was denied him altogether, for it does not appear ho applied to the court for the appointment of triors.
By the common law, the principal cause of challenge was tried by the court, and challenges to the favor only, were tried hy triers, appointed by the court. —5 Bacon's Ab. 366.
The act of 1843, however, seemed to contemplate when the juror shall answer the questions required to he propounded by it, so as to make Mm prima facie competent, all further investigation, as to causes of [572]*572challenge, either principal or to the favor, shall be submitted to triers, and be determined by them.
The second ground of error assigned is, that the court “ repelled •evidence, that at the time of the purchase of the negro slave, (the subject of the alleged larceny,) at, sheriff’s sale, by Samuel Buffington, sen., (the prosecutor,) the same was sold under the encumbrance of a mortgage) because such testimony ascertained the fact that the property acquired in and to said negro, by the prosecutor, under said purchase, was not absolute, but limited and special, and the prisoner would.be at liberty to show in his defence, not only the value ol Such special property, but that the same was determined to disprove the allegations in the indictment, that said slave was the property oj Samuel Buffington, Sr., and of the value of five hundred dollars.-’’
The third ground of error assigned by the plaintiff is, that “ the court erred, in not admitting the mortgage fi. /a., bill, and accompanying papers — among them the original mortgage, with the decree of foreclosure— when tendered in evidence on the part of the prisoner ; because they went to prove that the equity of redemption in and to said slave was barred and foreclosed; and the entry by the sheriff thereon proved., that at the time of the alleged larceny, the said prosecutor had no property whatever in said negro, and that he was not entitled even to the legal possession of said negro.”
The fourth ground of error assigned upon, the record is, that “the court erred in refusing to 'admit the mortgage fi. fa. in evidence, when offered on the part of the prisoner,because the entries thereon established the fact, that the negro slave, the subject of the alleged larceny, had been levied on as the property of the prisoner, and a claim had been interposed by the prosecutor, which said claim being withdrawn, and the levy yet undisposed of, negatived the allegation in the instrument., that said slave was the property of the prosecutor.”
It appears the slave George was mortgaged by the prisoner tc Tucker. Afterwards, the slave was levied upon by virtue of an execution, issued upon a judgment obtained against the. prisoner, which war of later date than the mortgage, and sold at sheriff’s sale as the proerty of prisoner, and purchased by the prosecutor, subject to the encumbrance of'said mortgage, who acquired by such purchase, all the title which remained in the prisoner to said negro'; and when he paid, the debt to Tucker, which the mortgage was given to secure, there if, nothing which appears on the record, going to show that his title to the; slave would not have been good against everybody.
The counsel for the plaintiff in error assumes the ground, and makes i , the basis of his argument, that the legal title to the slave was in Tucker, the mortgagee, after condition broken. This court has already decide;, that by our law of mortgage, the title to the mortgaged property remains in the mortgagor until foreclosure and sale thereof, in the manner pointec out by statute ; that a mortgage is a security for the debt. The lega, title to the slave enjoyed by the prisoner was divested by the sheriff’;; sale, and passed to the prosecutor, who was the purchaser, and who tbur. acquired the possession of him.
It is true, before the title of the prosecutor to the negro was perfect as against Tucker’s mortgage, he would be bound to discharge the debt, [573]*573which the mortgage was given to secure; to raise the encumbrance created by the mortgage ; but with that the prisoner had nothing to do ; his title to the negro was sold by the sheriff, and purchased by the prosecutor, who had something more than a mere special property in the negro as against the prisoner. But if the prosecutor had only a special property in the negro, coupled with the lawful possession, it would be sufficient to maintain the allegation in the indictment. — Packard's case, 2d East Pleas Crown, 653; 1 Leach, 357; Roscoe’s Crim. Ev. 515.
It tvas urged that the value of the slave was material, that it might appear whether the offence was grand or petit larceny. The 20lh section of the 6th division of our penal code declares, “ The stealing of a slave is simple larceny. ” — Prin. Dig. 630.
We do not think, therefore, that the mortgage fi.fa. and the accompanying papers offered in evidence by the prisoner, would have proved, as is assumed by his counsel in the third assignment of error, “ that at the time of the alleged larceny, the prosecutor had no property whatever in the negro, and that he was not entitled even to the legal possession of said negro;” but on the contrary, are of the opinion the court below decided correctly in rejecting the testimony, for the reason, the prosecutor had such a legal possession of the property under his purchase at sheriff’s sale of the defendant’s title thereto, as in judgment of law was sufficient to maintain the allegation in the indictment; and the proffered evidence would not negative the same.
We are also of the opinion, the fact that the negro had been levied on by the mortgage fi.fa. in satisfaction of the mortgage debt, and claimed by the prosecutor, which claim had been dismissed, did not, in a legal point of view, negative the allegation in the indictment, that the slave was the property of the prosecutor. The prosecutor was the purchaser at sheriff’s sale, as we have already seen, and obtained the lawful possession of the negro under such purchase, from the sheriff; and when levied on to satisfy the mortgage debt, he claimed him as his property, giving bond and security for the forthcoming of the ne,gro at the day of sale, or when called for by the sheriff. Although the levy was dismissed, yet the prosecutor, as the claimant, was entitled to the possession of the negro for the purpose of surrendering him to the sheriff, in discharge of his bond; and depriving him of that possession, thus lawfully acquired, by the defendant, was wrongful and fraudulent, in the eye of the law.
From the best consideration we have been enabled to give to this case, we are of the opinion that there is no error in the record, and that the judgment of the court below must be affirmed.