Thompson v. State , 25 Ala. 41 ( 1854 )

GOLDTHWAITE, J. —

The questions raised upon the record as to the sufficiency of the indictment, we regard as settled by the decision in the case of Noles v. The State, at the present term. It is true, that in that case the crime was alleged to have been committed on a day certain, while here the offence, in conformity with section 8512 of the Code, is charged generally to have been committed before the finding of the indictment. The time, however, is not a constituent of the offence ; and if the Legislature may declare an indictment good, which does not allege the county in which the offence was committed, as we held in the case referred to might be done, upon the same principle the allegation of precise time may be dispensed with, which, in cases like the present, is entirely immaterial, the defendant having every legitimate advantage upon the evidence which he could have if it was charged in the indictment.

Neither was there any error in refusing the application of the defendants who pleaded not guilty, to be tried separately from the defendant who pleaded guilty. We held in Hawkins v. The State (9 Ala. 187), that where .several were jointly indicted for the commission of a felony, they could not claim separate trials as a matter of right; and the authorities examined in that ease show, very conclusively, that applications for a severance, in criminal cases, are always addressed to the sound discretion of the court in which the trial is had, that it does not depend upon the defendants pleading several pleas, and that the exercise of this discretion cannot be reviewed on error. The trial of the defendant who pleaded guilty was not over ; it still devolved upon the jury to assess the fine, and the court to pronounce its judgment. If he had not pleaded guilty, we have seen that his co-defendants could not, as a matter of right, have claimed a separate trial, and the mere fact that the jury would be required to look to the evidence, so far as he was concerned, solely for the purpose of assessing the fine, furnishes-no sufficient reason to the others to claim a severance as a right, which they could not do had he put in a plea which cast upon the jury the further duty of ascertaining his guilt.

The first two charges requested by the appellants involve the proposition, whether any individual who believes that his property has been stolen by a slave has the right, without process of law, to search his dwelling house upon the premises of his master. Wo have no hesitation in saying, that this proposition cannot be sustained, either upon principle or authority. The house of the slave is the house of his owner; and the fact that it is used by the former as his dwelling does not change its character, so as to authorize an entry into it as a right, in any case in which an entry could not lawfully be made into the house of the master, except in cases in which the authority is expressly given by law, as in the case of patrols (Code, § 992.) If the law was otherwise, it would necessarily lead to very great abuses; and the case before us, with its accompanying incidents of turbulence, violence and outrage, affords a striking illustration of the consequences to which the doctrine contended for- would lead.' It was to avoid such consequences, that the law requires a party, in order to obtain a search warrant, first to make affidavit that his property has been stolen, and to state the grounds of his belief that it is concealed in the place proposed to be searched; and when this is done, it is not left to the party to prosecute the search, but it is conducted by an officer, who is responsible to the law for the proper execution of this duty. — Code, §§3714, et seq. Unless this is done, the parties invading the premises of the master, or the dwelling- of the slave, are trespassers, and amenable to the law for their unlawful act.

The only remaining question arises upon the refusal of the court to give the last charge requested. This charge was, “ that if the original purpose of the parties, to-wit, searching of. the negro houses, was, after it was done, affirmed and acquiesced in by Bennett (who was shown to be the owner of the slaves), then the defendants were in a new position, and any subsequent act of one of them could not be connected with the original purpose of the parties.” It may be conceded, that if the act complained of was committed by one of the party only, and not done in pursuance of the common design, they alone who participated in the act are legally responsible. In other words, to render all liable in such a case, the act must happen during the prosecution of the original unlawful purpose, or within such a time afterwards as to satisfy the jury -that it was connected therewith. — 1 East PI. C., c. 5, § 34, p.-259. The true criterion is, whether the act is connected with the general or particular intent with which the parties unlawfully confederated. If it falls within this intent, all are guilty. Upon these principles, if the evidence established that the original design was confined to searching the negro houses, and after that act was entirely over, an assault was committed, our opinion is, that it could not properly be regarded as done in pursuance of the common purpose. But if the evidence conduced to show that the original design of the defendants not only extended to the search, but went further, and contemplated the use of force' if opposed or interfered with upon the premises, then the charge was properly refused, for the reason, that it assumes that the common design was limited to the search. The words are, “ if the original purpose, to-wit, the searching of the négro houses, was,” &c. The question, therefore, in relation to this charge, depends upon the fact, whether the record discloses testimony tending to prove that the original purpose of the defendants was not confined to the search of the houses, and that the act complained of was within the scope of the common design. That it tends to this conclusion, we all agree. The evidence shows, that while the search was going on, or just as it had terminated, a female slave fled shrieking from the negro house to the chamber of her mistress, pursued by two of the party, who planted themselves beside the door of the room in which she had taken refuge, apparently to prevent her from escaping ; and when the owner of the slave (and master of the house) stepped towards the door and attempted to pass in, civilly requesting the defendants to leave his house, that his family might not be disturbed and alarmed, he was assaulted and severely beaten by one of the party, without any of the others offering any assistance, or, so far as the evidence discloses, attempting to interfere by remonstrance or otherwise. Looking to the conduct of the parties, we think the jury might very reasonably have inferred the assent of all to the assault, and that the violence which was then offered entered into the general intent; and if such was the fact, all were guilty. It would make not the slightest difference, that the owner of the premises consented to or acquiesced in the search. The liability of all would result from the force being used in contemplation of the common unlawful purpose; and a charge which confined the intent within a more narrow compass than the evidence tended to establish, would have been incorrect.

Judgment affirmed.