Harrington v. State , 36 Ala. 236 ( 1860 )

R. W. WALKER, J.

1. By the act of February 5th, 1858, it is provided, that ‘-‘ special terms of the city court may beheld, by order of the judge, whenever it may be necessary for the trial of criminal causes, aud to deliver the jail of all persons charged with crimes and offenses.” — Acts of 1857 — 58, p. 57, § 3. Under this act, the authority of the court, at the special terms here provided for, is certainly as extensive as that with which the English judges were clothed by virtue of the commission of general jail delivery. This commission was held to confer upon the justices to whom it was directed the power to originate business, as well as to try those cases originated by other justices. Accordingly, they had the right +o take indictments against all persons in actual or constructive custody. — 1 ’Chitty’s Cr. Law, 145-6; 2 Hale’s P. C. 34-5; 2 Hawk. ch. 6, §2; 4 Wendell’s Blackst. 270, note 17.

The power to originate business, and to take indictments, involves the power to organize a grand jury. As to what is the proper mode of obtaining a grand jury at a special term of the city court of Mobile, we need not now inquire. We go as far as it is at all necessary in this case, when we decide, that the city court of Mobile has the power to organize a grand jury at a special term, held under the act of 1858.

[2.] If the court had no authority to organize a grand jury at the special term, an indictment found at that term might possibly be void ; and, in that case, the objection could be taken for the first time in this court. If, ou the other hand, the court had such authority, the objections which the defendant interposed to the manner in which the particular grand jury was organized, can be of no avail; for the Code expressly provides, that none of the objections which the defendant made to the indictment, on grounds relating to the formation of the grand jury, shall be allowed, whether taken by plea of abatement, or otherwise. — Code, § 3591. And the same section of the Code furnishes a complete answer to the assignments of error which ask a reversal of the judgment, because, as it is alleged, the record does not show that the grand jurors possessed the qualifications required by law, or that they were examined in reference to their qualifications, or that they were sworn in the manner directed by the Code. Floyd v. State, 30 Ala. 511.

[3.] If it be conceded, that the city court, when holding a special term, is subjepttothe same restrictions by which commissioners of general jail delivery under the English law were bound; and that, accordingly, no indictment can be found by a grand jury, at a special term, against persons notin actual or constructive custody, the concession would not avail the plaintiff in error. The city court is a court of general jurisdiction; and if an indictment found at a special term, against a person not in custody, would be invalid, we would presume, unless the contrary was shown by the record, that the defendants in indictments found at such term were at the time in'eustody. It is proper to say, that we intimate no opinion as to whether the authority of the court at a special term is subject to the limitation suggested.

[4.] It is not necessary for the indictment to show that the grand jury was legally called before the court, or where the session of the court or grand jury was held, or that the indictment was returned iuto court. For this reason, if for no other, there was no error in overruling the demurrers assigning these as grounds of objection to the indictment. All the other grounds of demurrer, except the 7th, consist of matters relating to the formation of the jury, and were properly overruled. — Code, § 3591. There is nothing in the objection assigned as the seventh ground of demurrer, the indictment being in the form prescribed by the Code.

[5.] Under the Code, (§ 1983,) the husband has a special property in the separate estate of his wife. Hence, the slave was in this case properly described as the property of Mr. Lyon.

[6.] Lyon was certainly not an accomplice of the defendant in the act of selling. There was no community of purpose between them ; the defendant not even being aware of Lyon’s presence, nor in any degree influenced by it. The statutory offense consists in the act of selling, not in that of buying; and neither the purchaser, nor one participating in the purchase, can be deemed an accomplice of the seller. — See Davidson v. State, 33 Ala. 353.

[7.] If it be the law, (which, however, we do not affirm,) that an indictment under section 3283 of the Code, for selling liquor to a slave, could not be sustained, whore the sale was made, and the liquor delivered, in the presence of the master, and by his consent; it is obvious that this can only be true, in those cases where the fact of the master’s presence was known, and his assent communicated to the seller. An uncommunicated consent can exert no influence upon the conduct of the seller, and is no defense to an indictment for the act of selling. Moreover, the consent, to be an available defense, must be a consent to a sale of the liquor, not merely to an experiment to detect a violation of the law. The master’s delivery of money to a slave, with instructions to buy liquor from a person whom he suspects of having unlawfully sold liquor to slaves, for the purpose of detecting the offender, does not excuse the sale of liquor to the slave for such money. Jolly v. State, 8 S. & M. 145; State v. Anone, 2 N. & McC. 27.

[8.] Mr. Starkie, speaking of circumstantial evidence, 'says: “ Whenever the probability is of a definite and limited nature, (whether in the proportion of one hundred to one, or of one thousand to one, or any other ratio, is immaterial,) it cannot be safely made the ground of conviction.” — 1 Starkie’s Ev. 574. But this principle is applicable alone to facts entirely inconclusive in their tendency — that is, to such facts or circumstances that, when all they tend to prove is admitted, the guilt of the accused is still left wholly uncertain, or dependent upon some definite probability. As the record does not show that the evidence was confined to facts wholly inconclusive in their tendency, the court did not err in refusing the last charge asked by the defendant. — Mickle v. State, 27 Ala. 21.

It may be doubted, indeed, whether the charge, in fhe form in 'which it was asked, would not, in any case, be more calculated to confuse than to enlighten a jury. A charge was asked, on a trial in Mississippi, almost in the identical words of the one under consideration. The appellate court held, that there was no error in the refusal to give the charge, and used the following language in regard to it: “ It is true that this charge is a literal transcript of language used by a learned writer in expounding the doctrine of circumstantial evidence. It is manifest that the proposition contained in the charge was not announced by the author from whom it was copied, as a distinct principle of law. It was intended as an illustration of the weight which should be given to circumstantial evidence, in determining the question in any given .case, whether such evidence was sufficient to exclude from the mind of the judge or jury all doubt of the guilt of the party sought to be affected by it. The instruction presents an extremely abstract proposition ; and was much more likely to confuse the jury, than to enlighten them upon the questions under consideration.” — Browning v. State, 30 Miss. R. 656, 673 ; Browning v. State, 33 Miss. R. 47.

We find no error in the record of which the defendant can here complain.

Judgment affirmed.