Schwartz v. State , 37 Ala. 460 ( 1861 )

STONE, J.

The statute which we are to construe in this case, had for its object the correction of an evil which exists in every slaveholding community, namely, illegal traffick with slaves. The arts and devices of petty traders have generally been such as to elude our penal enactments; and, consequently, slaves have continued to be demoralized, by having held out to them incentives to theft, that they may thereby procure the means of gratifying a corrupted and corrupting appetite. The object of the present enactment was, to reach and prevent the offense, which can rarely be proved because of its secrecy, by seizing upon and punishing another offense against the good government and well-being of slaves, which usually attends upon and evidences the more .grievous offense.

The statute, though well conceived to carry out the object of the legislature, is, nevertheless, not expressed with such precision as to leave no donbt or difficulty in its expo-si tion, — -Bee Bamph, Acts, 1857-8, p. SSffi The first, third, and fourth, sections, are those which create the difficulty, The first section defines the offensej the third relates to the indictment 5 and the fourth, to the proof. The language of the several sections is variant. Section 1 declares, “ that the keeping of every house in this State, where spirituous liquors are sold, .retailed, or given away, and which slaves or free persons of color habitually visit, assemble, or stop at, or loiter about, is hereby declared to be a public nuisance 1 provided, the general reputation of such house, or of the keepers thereof, as to trading or trafficking with slaves, is bad,” Section 3 provides, “that in all prosecutions under this act, it shall be sufficient fob the indictment to state, that the defendant, before the finding of the indictment, kept, or was engaged in the keeping of a public nuisance, by having permitted slaves dr free persons of color habitually to visit, assemble, dr stop at, or loiter about, the bouse or premises kept or occupied by the defendant.”

The indictment in this case pursues section 3, and contains nothing beyond its specified requirements. It is urged for the defendant, that this indictment does not con-forji to the bill of rights, because it fails to set forth “the nature and cause of the accusation.” — Bill of rights, ^ 10 Code, p. 30. A further objection urged against it is, that it is not framed according to the forms which the law has prescribed. We have duly -considered ’these objections, and it is our opinion that they are not well taken.

This statute is a public one, and all men are charged with a knowledge of its contents. — Erwn v. Hamner, 27 Ala. 296. All men, in reading an indictment framed under the third section, are reasonably informed that- the indictment charges the offense denounced by the first section. In fact, it may admit of question, if such is not the result of the legal intendment, which presumes that every one knows the law. Be this 5s it may, enough is stated in the indictment to inform the defendant of the nature and cause of the accusation. The non-professional reader will be better informed of the nature and cause of the accusation by the simple statement found in this record, than he would bo by the technical verbosity which pre<-vailed a century ago.

Nor is this a -new question in this court. Several bf thé Code forms of indictments are defective, under the argument made in this case ; for they omit to aver many facts, which are necessary to be proved to insure a conviction-. Many of them aver facts disjunctively, and all of theni omit all mention o-f the county in which the offense was committed. — See Code, §§ 3244, 3506, 3507 ; also, forms Nos. 7, 26, 29, 31, 33, 66, 67, 68, 71, 74, &c. These forms we have invariably held sufficient. — See the authorities collected, Shep. Dig. 71-2. In Noles v. The State, (24 Ala. 672,) our predecessors ruled, that the constitution does not inhibit the legislature from introducing forms of indicment, variant from those of-the common law. They further ruled, that, if the form oí indictment prescribed by the statute contain such an accusation at the suit of the State, found by a grand jury, .as furnishes to the accused reasonable information of what he is ©ailed on to answer, by setting forth the constituent elements of the offense, it will be sufficient, although it may omit many averments that were necessary at- common law... The indictment in this case is-.in the form which the law has prescribed, and, under the rules above declared, itris sufficient.

The fourth section of. the act under which the defendant was tried, is in the following language : “Before any conviction can be had in any prosecution under this act, it shall be incumbent on the State to prove, by three or more respectable witnesses, that the general reputation of the house,, or the keeper thereof, for the keeping of which the indictment is. found, as to trading or trafficking illegally with slaves, is. ba,d.” On. a comparison of the sections 1, 3, and 4- of this-statute, it. will be discovered that each is. different'from the others. Section 1.declares, that certain elements shall constitute a,: public nuisance; section 3 relates to the indictment; and, section 4 declares, that certain proof shall he made before a conviction can be had. Section 3 omits all mention of many of the ingredients of the offense, as found in section 1; while section 4, in speaking, of. the proof to< be made, contains the word illegally, which is not found:in. section 1.. Now, we think these difficultieswanish, when ¡we consider the purpose for which each separate section appears to have been inserted. Section 1 deffei.es the offense, and -its constituent elements ; section 3 decldres what-: shall be a sufficient indictment; and section 4 requires, .that certain proof shall be made, preliminary to a conviction. The first declares what shall be found by the jury ; -the third, what shall be alleged by the pleader ; and the fourth, what shall be deposed to by three or more respectable witnesses. To allow section 4, which relates to the testimony, to enlarge the constituent elements of the offense which section 1 defines, would seem to be as illogical, as to allow section 3, which defines the indictment, to restrict those constituent elements.

If it be asked, why require the witnesses to testify that the character for trafficking illegally with slaves is bad, if that be not one ©f .the facts to be found by the jury ; — we answer, it was certainly within the power of the legislature to make such a rule, and if is not for us to question the exercise of that power.. The offense is complete, under section 1, if only/ree persons-of color habitually visit, assemble, or stop at; or loiter about,’ a ffiouse -of the kind mentioned in the statute, provided the general reputation of such house or the keeper thereof, as to trading or trafficking with slaves, is bad.. It is not complete, if slaves habitually visit, assemble, &c., at such house, unless the reputation of the house or its keeper, for trading.,or trafficking with slaves, is bad. .

In Jordan v. Owen, (27 Ala. 152,)v we decided,- that a plaintiff, testifying, in. his own case to an ..indebtedness to him, must go farther, and swear that -the debt is unpaid. Yet no one would contend, that, in such case, the charge of the court should authorize that body to find against the plaintiff if he had-.not satisfied .them-that the debt was not paid. The proof, in such case,. getting .before the jury, if the plaintiff make out a prima-facie case of indebtedness, the onus of showing a payment would, in the case supposed, as in .all other cases, rest on-the defendant. Ei incumbit probatio,- qui dicit. The testimony in such case, to be legal, must contain positive and negative, averments ; while the finding of the jury need only.respond affirmatively-

A.fair illustration of the argument we are making, may be seen in. the following supposed case. It is said to be a rule of the -common law, not to convict of murder, unless the dead .body has been found. Now, suppose an act of ithe legislature should declare, that no conviction for mur,der should be had, unless three respectable witnesses'Should testify that they had seen the dead body. On a trial, three respectable witnesses testify as the statute requires-; but the jury are convinced that one of the witnesses is mistaken, and that in fact he never saw the dead body. Still .the jury arc convinced, beyond reasonable doubt, that the prisoner had committed the offense charged. Would anyone contend, that, under the influence of such Supposed statute, the prisoner should be acquitted ? So, nnder this statute, we hold, that section 4 is not introductive of any new faet to be found by the jury; but that, out of abundant caution, its purpose was to screen the defendant from conviction, save on the testimony of three or more respectable witnesses on the question of character.

It may be-.questioned, whether there can be such thing as general bad character or reputation for trading or trafficking with slaves, unless such trading or trafficking was illegalin other words, that a trader, who dealt with slaves legally, could not thereby acquire a bad reputation. In answer to this we say, the legislature have inserted the word illegally, in defining the measure of proof, and we prefer not to say they had no object in doing so. We bold, then, that the testimony must conform to section four, but the finding need only respond to the requirements of section one.

The bill-of exceptions in this case purports to set out all the evidence. 'Five'witnesses testified, that the general reputation of the defendant, for trading or trafficking with slaves, was 'bad; but no witness employed tire word illegally. In the first charge given to the jury, the circuit court, on this point, said, in effect, that if three respectable witnesses had testified that the defendant’s general reputation for trading or trafficking with slaves was bad, this would meet the requirements of the law. This was an error.

The second charge is, perhaps, obnoxious to criticism, in ¡this — that it does not sufficiently confine the assembling oi- loitering of the slaves, or free persons of color, to a place or places at or about the premises of the defendant. This will be remedied on another trial.

It was not necessary that the State should prove affirm^ atively, that the defendant permitted, or consented, that slaves- should; visit, siop, or assemble at, or loiter about his premises- The police of his own premises was under his control, and it was both his privilege and duty to drive them away. If he did not do so, that provision of the statute was violated.

It wa,s not necessary that the defendant should have been, a licensed retailer- If he kept, a house where spirituous liquors were sold, retailed, or given away, that was sufficient. The phrase, “shall-not have a license granted to him or her' again}”' is a verbal inaccuracy. Its meaning is afterwards, as is shown by other provisions of the statute.

What we have said will sufficiently guide the circuit court in another-trial.

Eeversediand remanded.