RiCE, J.
— The indictment charges, that John Waters, with two other persons named therein, “ with foi’co and arms, in and upon one Ivory Pray, with a dangerous weapon, to wit, the drawn sword of a sword cane, with which said John Waters, &c., were then and there armed, did make an assault, with an intention, him the said Ivory Pray, with the drawn sword aforesaid, then and there feloniously, wilfully, and of their malice aforethought to kill and murder.”
As to the defendant, John Waters, the jury returned the following verdict, to wit, — “that the defendant, John [61] Waters, is guilty of a felonious assault, with intent to kill, but not to murder, Ivory Pray.”
Before proceeding to trial, the respondents severally filed motions for issuing compulsory process for obtaining such witnesses in their favor as will be necessary for their proper defence, at the expense of the State.
The Court refused the motion, but ordered, that the respondents have compulsory process to bring in witnesses, who have been summoned and do not attend, at respondents’ expenso, and not at the expense of the State.
After verdict, the defendants severally moved, that judgment be arrested, because of the denial of the motion above referred to, as well as for other reasons set out in their several motions. These motions in arrest were overruled by the presiding Judge, and exceptions filed to said last rulings.
The right of compulsory process at the expense of the State, is claimed for the respondents under that clause of § 6, Art. I, of the Constitution, which provides, that in all criminal prosecutions, the accused shall have a right to have compulsory process for obtaining witnesses in his favor.
Section 22, c. 172, B. S., provides, that any person indicted for a crime, punishable with death, or by imprisonment in the State’s prison for life, shall be entitled to have a list of the jurors returned, delivered to him or his counsel, a copy of the indictment, and process to summon his witnesses, at the expense of the State; all which it shall be the duty of the clerk to furnish without expense to the prisoner.
A fair construction of this section does not seem to give an accused person any right beyond that of having a list of jurors, a copy of the indictment, and the process for summoning witnesses at the expense of the State. That clause of the section making it the duty of the clerk to furnish these facilities to the prisoner without expense is in harmony with this construction. To furnish the list of jurors, the copy of the indictment, and the process for summoning [62] witnesses appropriately falls within the ordinary duties of the clerk. But to require that officer to furnish the funds necessary to pay the expenses of summoning, and the fees for the attendance of the defendant’s witnesses, would seem to be requirements beyond the appropriate sphere of his official duties; nor is there any provision of law by which he could be reimbursed for such expenditures.
In capital trials, the practice has been, to tax and allow, as in ordinary criminal bills of cost in behalf of the State, the expenses for summoning and the fees for travel and attendance of the defendant’s witnesses. The same practice has also prevailed in Massachusetts, from whence the rule was probably introduced into this State. In Com. v. Williams, 13 Mass. 501, the Court, in speaking of the practice say, that it was granted in capital trial only, in favor of life. The practice does not appear to have originated, either in Massachusetts or in this State, in any specific statute provision.
But were it otherwise, and did the statute already cited, extend the right of accused persons so far as to include the payment, by the State, of the expenses incurred by them in procuring the attendance of witnesses, it would not avail •the defendants in this case, as the offence for which they are indicted does not fall within the provisions of that section.
But it is contended, that the constitutional provision, by its own force, gives this right to all persons accused of crime independent of statute provision.
Such is not the natural import of the language used in the constitution, and such cannot be its construction, unless there are circumstances connected with the insertion of the provision in that instrument, which will extend its meaning, by implication, beyond the ordinary signification of the words used.
In the early history of the common law, the means for defence allowed to persons accused of the higher grades of crime were much more limited than at present.-
Thus, in capital trials the accused had no means of com[63] pelling tbe attendance of witnesses, on his behalf, without a special order from the Court; and if witnesses attended, voluntarily, for such person, they could not be sworn. Except in the presentation of questions of law, he was not entitled to the aid of counsel in making his defence, nor was he entitled to a copy of the indictment against him.
Such unreasonable restrictions, in making defence against charges of an high and aggravated character, and where a conviction was followed with penalties involving both life and estate, early attracted the attention of the more enlightened jurists and statesmen of England, and were gradually made to yield to an advancing spirit of civilization, and more enlarged and correct views of personal liberty and individual right.
By e. 9, § 3, stat. 2, 1 Ann, provision was made that witnesses for the defendant, in case of treason or felony, shall be sworn in the same manner as witnesses for the crown; and by 7 William III., c. 3, § 7, that defendants in case of treason, shall have the same process to compel the attendance of witnesses for them, as was granted to compel witnesses to appear against them. The same statute provides that persons indicted for treason or misprison of treason, shall be entitled to have a true copy of the whole indictment, five days at least before trial, paying the reasonable fees for the writing thereof, not exceeding five shillings for the copy of every such indictment. The Court were also authorized to assign counsel for the accused.
Thus, though accused persons became entitled, by law, to a copy of the indictment against them, it was at their own expense, and though entitled to compulsory process for summoning witnesses, no provision was made for the payment of the expense, by the government. Indeed, at that time, the law provided no means for reimbursing or paying, the witnesses on the part of the prosecution. Such was the condition of the law until it was provided by 27th Geo. II., c. 3, § 3, “that when any poor person shall appear on recognizance, in any court, to give evidence against another, [64] accused of any grand or petit larceny, or other felony, it shall, and may be in the power of the Court, at the prayer and on the oath of such person, and in consideration of his circumstances, in open court, to order the treasurer of the county or place in which the offence shall have been committed, to pay unto such person, such sum of money, as to the said Court shall seem reasonable for his time, trouble and expense.” The provisions of this Act for the payment of witnesses on the part of the government, were much extended by Geo. IV., c. 64.
Free access — add to your briefcase to read the full text and ask questions with AI
RiCE, J.
— The indictment charges, that John Waters, with two other persons named therein, “ with foi’co and arms, in and upon one Ivory Pray, with a dangerous weapon, to wit, the drawn sword of a sword cane, with which said John Waters, &c., were then and there armed, did make an assault, with an intention, him the said Ivory Pray, with the drawn sword aforesaid, then and there feloniously, wilfully, and of their malice aforethought to kill and murder.”
As to the defendant, John Waters, the jury returned the following verdict, to wit, — “that the defendant, John [61] Waters, is guilty of a felonious assault, with intent to kill, but not to murder, Ivory Pray.”
Before proceeding to trial, the respondents severally filed motions for issuing compulsory process for obtaining such witnesses in their favor as will be necessary for their proper defence, at the expense of the State.
The Court refused the motion, but ordered, that the respondents have compulsory process to bring in witnesses, who have been summoned and do not attend, at respondents’ expenso, and not at the expense of the State.
After verdict, the defendants severally moved, that judgment be arrested, because of the denial of the motion above referred to, as well as for other reasons set out in their several motions. These motions in arrest were overruled by the presiding Judge, and exceptions filed to said last rulings.
The right of compulsory process at the expense of the State, is claimed for the respondents under that clause of § 6, Art. I, of the Constitution, which provides, that in all criminal prosecutions, the accused shall have a right to have compulsory process for obtaining witnesses in his favor.
Section 22, c. 172, B. S., provides, that any person indicted for a crime, punishable with death, or by imprisonment in the State’s prison for life, shall be entitled to have a list of the jurors returned, delivered to him or his counsel, a copy of the indictment, and process to summon his witnesses, at the expense of the State; all which it shall be the duty of the clerk to furnish without expense to the prisoner.
A fair construction of this section does not seem to give an accused person any right beyond that of having a list of jurors, a copy of the indictment, and the process for summoning witnesses at the expense of the State. That clause of the section making it the duty of the clerk to furnish these facilities to the prisoner without expense is in harmony with this construction. To furnish the list of jurors, the copy of the indictment, and the process for summoning [62] witnesses appropriately falls within the ordinary duties of the clerk. But to require that officer to furnish the funds necessary to pay the expenses of summoning, and the fees for the attendance of the defendant’s witnesses, would seem to be requirements beyond the appropriate sphere of his official duties; nor is there any provision of law by which he could be reimbursed for such expenditures.
In capital trials, the practice has been, to tax and allow, as in ordinary criminal bills of cost in behalf of the State, the expenses for summoning and the fees for travel and attendance of the defendant’s witnesses. The same practice has also prevailed in Massachusetts, from whence the rule was probably introduced into this State. In Com. v. Williams, 13 Mass. 501, the Court, in speaking of the practice say, that it was granted in capital trial only, in favor of life. The practice does not appear to have originated, either in Massachusetts or in this State, in any specific statute provision.
But were it otherwise, and did the statute already cited, extend the right of accused persons so far as to include the payment, by the State, of the expenses incurred by them in procuring the attendance of witnesses, it would not avail •the defendants in this case, as the offence for which they are indicted does not fall within the provisions of that section.
But it is contended, that the constitutional provision, by its own force, gives this right to all persons accused of crime independent of statute provision.
Such is not the natural import of the language used in the constitution, and such cannot be its construction, unless there are circumstances connected with the insertion of the provision in that instrument, which will extend its meaning, by implication, beyond the ordinary signification of the words used.
In the early history of the common law, the means for defence allowed to persons accused of the higher grades of crime were much more limited than at present.-
Thus, in capital trials the accused had no means of com[63] pelling tbe attendance of witnesses, on his behalf, without a special order from the Court; and if witnesses attended, voluntarily, for such person, they could not be sworn. Except in the presentation of questions of law, he was not entitled to the aid of counsel in making his defence, nor was he entitled to a copy of the indictment against him.
Such unreasonable restrictions, in making defence against charges of an high and aggravated character, and where a conviction was followed with penalties involving both life and estate, early attracted the attention of the more enlightened jurists and statesmen of England, and were gradually made to yield to an advancing spirit of civilization, and more enlarged and correct views of personal liberty and individual right.
By e. 9, § 3, stat. 2, 1 Ann, provision was made that witnesses for the defendant, in case of treason or felony, shall be sworn in the same manner as witnesses for the crown; and by 7 William III., c. 3, § 7, that defendants in case of treason, shall have the same process to compel the attendance of witnesses for them, as was granted to compel witnesses to appear against them. The same statute provides that persons indicted for treason or misprison of treason, shall be entitled to have a true copy of the whole indictment, five days at least before trial, paying the reasonable fees for the writing thereof, not exceeding five shillings for the copy of every such indictment. The Court were also authorized to assign counsel for the accused.
Thus, though accused persons became entitled, by law, to a copy of the indictment against them, it was at their own expense, and though entitled to compulsory process for summoning witnesses, no provision was made for the payment of the expense, by the government. Indeed, at that time, the law provided no means for reimbursing or paying, the witnesses on the part of the prosecution. Such was the condition of the law until it was provided by 27th Geo. II., c. 3, § 3, “that when any poor person shall appear on recognizance, in any court, to give evidence against another, [64] accused of any grand or petit larceny, or other felony, it shall, and may be in the power of the Court, at the prayer and on the oath of such person, and in consideration of his circumstances, in open court, to order the treasurer of the county or place in which the offence shall have been committed, to pay unto such person, such sum of money, as to the said Court shall seem reasonable for his time, trouble and expense.” The provisions of this Act for the payment of witnesses on the part of the government, were much extended by Geo. IV., c. 64.
It was in view of the history of the common law, that the founders of our governments, State and national, acted. They wore fully aware of the practices by which the government of England had, in early times, crushed the individual rights of the subject, and of the long and severe struggle required to erect legal barriers against the encroachments of arbitrary power. It was the determination to preserve those barriers, and to mark distinctly the line between the legitimate powers of the government, and the personal rights of the citizen, that induced the founders of the American States to insert in their organic laws those solemn declarations of personal rights which are to be found in the Constitution of the United States, and of the individual States. Each assertion in the constitution, of a distinct personal right, was designed to repudiate some erroneous principle, or to guard against some particular wrong, which had been avowed or practiced by the government from which we had separated. The rights now claimed for the defendants, to have their witnesses paid by the government was never claimed in England or this country before the formation of our constitution. It was not one of the evils designed to bo guarded against, nor a new right to be asserted by constitutional provision.
The question whether an accused person is entitled to compulsory process to bring in his witnesses before their fees have been paid, or tendered, has been discussed both in England and this country.
[65] In ex parte Chamberlain, 4 Cow. 49, the Court decided, that in misdemeanors the defendant must tender his witnesses their fees as in civil cases, but in felonies witnesses were compellable to attend without fees. The question whether the defendant’s witnesses were to be paid by the State was not raised in that case. The better opinion, in England, seems to be, that witnesses, (for the defence,) making default in criminal prosecutions are not exempt from attachment on the ground, that their expenses were not paid at the time of the service of the subpoena. 2 Russel on Cr. 947, and note.
The practice in this State, it is believed, has been different, and that compulsory process has been issued for defendants in criminal prosecutions in the same manner as in civil cases, and no good reason is perceived why there should be any distinction in the two classes of cases.
There was no error on the part of the Judge in denying the compulsory process as claimed by the defendants.
The verdict of the jury most distinctly answers the second cause assigned in the motion, when it says, “ that the defendant, John Waters, is guilty of a felonious assault with intent to kill, but not to murder Ivory Pray."
The third cause assigned is not sustained, certainly not to its full extent. That the verdict finds the defendant guilty of an assault, there can be no doubt. Nor can there be any doubt that it was competent for the jury to find the assault proved, and to negative the felonious intent. R. S., c. 166, § 7; State v. Parmela, 9 Cow. 259; State v. Coy, 2 Aik., 181; State v. Burns, 8 Ala. 313; Bradley v. State, 10, S. & M. 618.
The jury may acquit the defendant of part and find him guilty of the residue. 1 Chit. C. L. 637. Where the accusation includes an offence of an inferior degree, the jury may discharge the defendant of the higher crime, and convict Mm on the less atrocious. 2 Hale, 203. This rule applies in all cases whore the minor offence is necessarily an elemental part of the greater, and when proof of the greater necessarily establishes the minor.
[66] But a question of greater importance has been presented by the defence. The jury found that the defendant, John Waters, was guilty of an assault with intent to kill, but not to murder Ivory Pray. It is contended that this verdict is inconsistent and repugnant. If such be the fact it cannot stand. Rex v. Woodfall, 5 Burr. 2661.
That killing is a necessary element in murder, is apparent. Murder cannot be perpetrated without killing. But homicide is not, necessarily, murder; it may bo a much less offence, and under some circumstances, not an offence.
But the question presented is, can an assault be made with intent to kill, which must not necessarily involve an intent to murder ? Are not the terms in legal contemplation synonymous ? By the counsel for the defendant, it is contended that they are. The statute, however, recognizes them as distinct offences. Section 29, c. 154, R. S. provides, that if any person being armed with a dangerous weapon, shall assault another, with intent to murder, kill, maim, rob, steal, or to commit arson or burglary, he shall be punished by imprisonment in the State prison, not more than twenty years.” The same distinction is also made in the thirtieth section of the same chapter.
At common law there is no such crime recognized as an assault with intent to commit manslaughter, or simply to kill. Where an assault is made with intent to kill, the intent was supposed to imply malice, and therefore the offence was deemed to be an assault with intent to murder.
But in several of the States, as in this State, the statutes recognize an assault with intent to kill, and an assault with intent to murder, as distinct offences, the latter being of a higher grade and including the former. The existence of such a distinction has also been recognized by the Courts.
In State v. Nichols, 8 Conn. 496, the defendant was indicted for an assault with malice aforethought, with intent to kill and murder. The jury found the prisoner guilty without malice aforethought, of the crime whereof he stood [67] indicted. The Court held, that he was properly convicted of an assault with intent to kill, under the statute of 1830.
In Scott v. Commonwealth, 6 S. & R. 224, the plaintiff in error, had boon indicted for an “assault with intent to kill and destroy.” The jury returned a verdict of guilty of an assault with intent to kill. DüNCAN, J., in giving the opinion of the Court says, “ the offence is assault and battery with intent to kill, an offence distinctly laid and punishable by law. * * * If the party had been found guilty of killing, it would not rise higher than manslaughter.”
In the case of The Slave Nancy v. The State, 6 Ala. 483, which was for an “ assault with intent to kill and murder,” the jury found a verdict of “ guilty of an assault with intent to kill,” and the Court refused to arrest the judgment on the ground, that it is a capital offence for a slave to assault a white person, with intent to kill, although if the intention had been consummated, the killing would have been manslaughter only.
In State v. Burns, 8 Ala. 313, the prisoner was indicted for an assault and battery with intent to kill and murder one David Walker. The jury found the defendant “ guilty of an assault with intent to kill.” The Court held, that the legal effect of this verdict was, (the defendant being a white man,) guilty of an assault and battery, only.
In Bradley v. State of Miss., 10 S. & R. 618, the original defendant had been indicted for an assault upon Isham, a slave, “with intent wilfully, maliciously and feloniously, to commit manslaughter.” The Court in considering this case, say, “this indictment can be construed only to be an indictment for an aggravated assault. It is not an indictment with intent to kill, by which is understood, and has been held, an intent to murder.”
An examination of our statute will produce the conviction, that the Legislature did not have a very distinct conception of the nature of this offence. Thus, while the maximum punishment for manslaughter is imprisonment for a term of ten years in the State prison, the punishment for [68] an assault, with a dangerous weapon, with intent to kill, may be imprisonment twenty years in the same prison, thereby making the attempt to commit a crime much more highly penal than the commission of the substantive crime. The same apparent inconsistency may be found in the statutes of other States.
The intention of the Legislature probably was, to draw a distinction between that class of assaults which are the result of design and deliberation, and into which the element of legal malice is presumed to enter, and those assaults which are the result of sudden provocation, and where, in the heat of blood, the act so closely follows the intent, as to preclude the presumption of design, or deliberation, and consequently to exclude the presumption of malice.
If this be the true construction of the statute, and such apparently was the intention of the Legislature, it follows, as matter of necessity, that an assault with intent to kill, is a minor offence, but is included in the offence of “ assault with intent to murder.” The jury were therefore authorized to find the defendant guilty of a portion of the offence charged in the indictment, and not guilty of the residue. That finding was warranted, not only by the statutes, but by the authorities already cited in this case.
The exceptions and motion are overruled. —
Judgment on the verdict.
Shepley, C. J., and Cutting J. concurred. — Hathaway, J., concurred in the result only.