Cheek v. State , 38 Ala. 227 ( 1862 )

A. J. WALKER, C. J.

The statute under which the indictment was-framed, is-as follows: “Any master, or other person standing towards -the slave in that relation, who inflicts, or allows another- to -inflict-on him, any cruel punishment, or fails to provide him with a sufficiency of healthy-food or necessary clothing, or to provide for him properly in sickness or old age, or treats him- in any other way with inhumanity, on conviction thereof, must be fined not less than twenty-five, or more than one thousand dollars.” Four of the penal omissions mentioned in this statute are charged in one count. The allegations of these omissions are joined conjunctively? for to say of one, that he failed to do either of two or more things, implies a failure in all. Therefore, the statute which authorizes the charging, in the alternative, of offenses of the same character and suject to the same punishment, has no influence upon the propriety of the joinder in this case. — Code, § 3506. But, without the aid of any statute, charges of the different penal acts and failures mentioned in the section above copied may be joined in a single count.- They are described in the same clause, and subjected to the same punishment. The statute, in stating several acts of kindred criminality in the disjunctive, and prescribing a punishment for the commission of one or the other of them, is understood to condemn one offense, and to specify different modes of committing it. It has, therefore, been decided, that the joinder of the charge of the respective acts in the same count is rather a charge of the same offense in the various modes of its commission, or in the different grades of it, and that, therefore, the count is not obnoxious to the objection of duplicity. The .accused may be convicted of either-of the specified modes K>f offense. — Stevens v. Commonwealth, 6 Metcalf, 241; Murphy v. State, 6 Ala. 846 ; 1 Bishop on Cr. Law, 535; Mooney v. State, 8 Ala. 328; Ben v. State, 22 Ala. 9; Ward v. State, ib. 16; Swallow v. State, ib. 20 ; State v. Slocum, 8 Blackford, 315; Regina v. Bowen, 1 Car. & Kir. 501; Iowa v. Abrahams, 6 Iowa, (Clark,) 117; Long v. State, 12 Georgia, 293; State v. Meyer, 1 Spears, 305.

The indictment charges the commission of the offense in reference to three slaves designated by name, and divers others to the grand jurors -unknown. The perpetration of the different speeies ofoffense- specified -in--section 3297, upon any one slave,'is indictable. That' A& made clear, alike by the language of that section, and ©f«”ihe next following section, which declares, that it shall i( be'sufficient t© charge .that the defendant did inflict on a slave any cruel punishment, or that he failed to provide ldm with a sufficiency of healthy;food,” &c„ That two' or; more distinct offenses cannot he joineddnr- the- same count, is a general rule of the law; b.ut there are exceptions to-it.' One of these ex.eeptions.-is, that the -different offenses which are the result of tike .-same act, and are parts of the same transaction, may be joined «in. the same count. — 1 Archbold’s Cr. Pl. 95-96. Practical -illustrations of this exception are found in indictments for burglary and larceny after entering the house. — Barbour’s Cr. Law, 319; Arch. Cr. L. 96. Then, whether or not th© indictmenbia this case is obnoxious to the'.objection of-duplicity, depends upon the question, whether the-, .offenses as to the: different slaves were parts of the-¡same .transaction, or the result of- the- same conduct oa the part of the.defeixdant. Duplicity is an objection which -must affirmatively appear, from the indictment. It is not an objection -to an indictment, that the «offenses it charges-may belong to distinct transactions. Does, it, then, affirmatively appear in this case, that the distinct,specifications of offense-, as to the different slaves were-, the: result .of distinct acts on the part of the accused:? We think it does not. If is conceded, that the distinctness of the causes of offenses might appear from the nature of them..., There are offenses vwhieh are incapable of a common origin. Such is not.- the character of the offenses-allegedin this case. A planter may, by an order, or act, of omission, common in its >■ effects, withhold fro® all bis slaves a sufficiency of healthy food and necessary clothing., and from'.; his sick and aged slaves a provision; suitable to their respective conditions..Where this is the case, a joinder of the offenses,,in reference to all the slaves coming within the operationmf the, common cause, is permissible.’ No ha;relship from suck a joinder results to the accused 5 "for his defense, like the charge, centres in a common point.-. Indeed, he derives an obvious advantage from the joinder,' in meeting in a single count the accumulated charge of misconduct in reference to all the slaves affected:, rather than incurring the vexation and peril of numerous separate prosecutions. — State v. Johnson, 3 Hill’s Law (S. C.) R. 1. If it should be-.;disclosed. in the progress of the trial, thatithe offenses as-.to the different slaves were distinct, the court would, by -compelling an election on the part of the State, protect the accused' from the injury of being compelled to answer as to-diverse transactions under the same, count. —People v. Adams, 17 Wendell, 475 ; Regina v. Bleasdale, 2 Car. & Kir. 765.

• We have’ look,ecl into the books, and find the leading principle upon whicbijwe have proceeded supported by several' decisions- In Rex v. Benfield and Saunders, (2 Burr. 980.) the court sustained-# count which charged the singing in the street of songs libellous of the prosecutor, and of his son and of his daughter. In Regina v. Giddins and others, (Car. & Marsh. 634,) the objection of duplicity was overruled, where a single count charged an assault upon Heorge Pritchard and Henry. Pritchard, and, stealing fro Gfeorge Pritchard two- shillings,- ai?d fro. Henry Pritchard one.shilling and a hat, - on;a given'hday..;-. It is- said in 1st Hale’s Pleas of the Crown, 531, that if the at the same time steals goods of A, of the value of sixpence, goods of B, of the value of sixpence, and goods of C, of the value of sixpence, being perchance in one bundle, or upon a table, or in one shop, this is grand larceny, because it is one entire felony. So, in Thomas’ case, reported in 2d East's Cr. L. 934, a count was sustained, which alleged the uttering and publishing as true twenty-four false forged and counterfeited receipts for money.

In a still later case in England, the accused was charged with- stealing coal from, the mines* of thirty-one different proprietors, which was-brought up through a shaft leased by him ; and the indictment was Held not to be obnoxious to the objection of duplicity. — Regina v. Bleasdale, 2 Car. & Kir. 765. It appeared that the different larcenies had been committed by undermining from-the defendant’s shaft; and the court refused to compel the prosecutor to elect, and decided that, so long as the coal was gotten from one shaft,-.it was one continuous taking, though the working was carried on by different levels and cuttings, and into the lands of different ■ people. The court; however, advised the prosecution to ■■confine its-'attention to the taking from one owner.

In the case of the People v. Adams, (17 Wend. 476,) it was held, that an indictment, which alleged an illegal sale of. different kinds of liquors, on a given- day, to divers persons, was not bad for duplicity, and that it must be understood as-averring only one transaction. The supreme court of Vermont sustained an indictment, which charged that the defendant broke" and entered one man’s house with intent to steal his goods, and, having so entered, stole another man’s goods. — State v. Brady, 14 Verm. 353. The decision is put upon the ground, thaNt-he burglary and larceny, although to- the detriment of different persons, belonged to the same transaction, and might be joined in* the same count... So, the supreme court of Rhode Island decided, that a criminal complaint of an assault on two persons was not bad, considering the assault on both the result of the same act. — Kinney v. State, 5 Rhode Isl. 385. And in Commonwealth v. Williams, (Thacher’s Cr. Cas. 84,) it was held, that where goods, belonging to different persons, are stolen at one time and place, the offense may be sekforth. in one count. So, also, in this State, it has been decided, that a count which charged that the defendant administered poison to three persons, is not bad for duplicity. Ben v. State, 22 Ala. 9. See, also, Shaw v. State, 18 Ala. 547 ; Rasmek v. Commonwealth, 2 Vir. Cas. 356. See, also, Com. v. Tuck, 20 Pick. 356.

We think the joinder in -this case -is 'authorized by the principle-to'-be extracted from the cases-above collected, and we decline<to sustain the-objection for-duplicity.

[2.]- It is further objected to the indictment, that it charges an omission of duty, not only as to three named slaves, (Bob, Anderson, and Mose,-) but as to divers others, whose names were to the jurors unhnoivn. In the cases of Francois v. State, (20 Ala. 83,) Brown v. Mayor of Mobile, (23 ib. 722,) and Starr v. State, (25 ib. 38.) it was decided, that such a mode of averment was not permissible, where the offense was trading with slaves. The reason -given for those decisions is, that the absence of the master’s consent was an element of the offense, and that the accused could not be prepared to. defend himself, by showing 'tbe necessary consent, unless he had information of »the name of the slave with whom the alleged trading was -done. In the first named of those eases,-the court- say : “ Iff the-trading with a slave was an offense, without any other constituent, we see no reason why-, the indictment might not allege -his name as unknown to-the jurors, if such was-the fact, without in the slightest degree impairing the ability of the ascused to defend?’ It is apparenff-therefore, that those decisions lay down a rule applicable- to a particular-rclass of cases, and not a general principle of criminal pleading. We think the^geiieral rule is, that-where the names of third persons are unknown, and cannot be ascertained, they- may be mentioned in the indictment -as persons whose names are to the grand jurors unknown. — 4 Chitty on Pleading, 212 ; 1 Arch. Cr. Pl. 80, 81, 82 ; Wharton’s Am. Cr. Law, § 251. If it should appear that the name was in faet known when the indictment was found, or could have been ascertained by the use of due diligence, it seems that the defendant would, upon the trial, be entitled to an acquittal as to the slaves so improperly described as unknown. — See the authorities above. We must, for these reasons, hold the indictment on its face unobjectionable, because the names of Some of the slaves are stated as unknown to the jurors.

It appears, however, that on the trial evidence was introduced, charging the accused as to slaves whose names were at that time knowp, but are not mentioned in the indictment. It is not shown, however, that the names of those slaves were not unknown, and incapable of ascertainment, at the time of the ñnding.of--the indictment. If they were unknown,' and incapable of ascertainment, when the indictment was found, the defendant would not be entitled to an acquittal in reference to them, because their names were afterwards ascertained, and were known at the time of the trial.— Com. v. Hendire, 2 Gray, 503 ; Whar. Am. Cr. Law, § 251. The bill of exceptions is not inconsistent wdth the supposition, that -the-names were-not discovered, and not capable of -discovery, until after the indictment was found. We can predicate no ruling, in favor of the defendant, upon -the isolated faqt, that the -names were known at the time-of the trial. There was no error, under the facts disclosed, in allowing proof as to slaves not named in the indictment.

[3.] We think it results from what we have already said in passing upon the indictment, that - the court was not bound to restrict the State to a prosecution for misconduct as to any one or more particular slaves, as it -appears that all the slaves were on a single plantation, and the conduct of the accused as to the slaves on the plantation aggregately was the evidence relied on for his conviction. The conduct of the accused as to the.feeding of each slave seems to have been a part of one general transaction applicable alike to all. If, however, it had appeared on the trial, that the offenses as to the different slaves were distinct, it would have been the duty of the court to compel an election on the part of the prosecution, and thus protect the accused against being compelled to answer as to divers transactions under the same count.

[4.] The witness introduced by the State had been an overseer on plantations for sixteen months. When we consider the closeness of observation which overseers on plantations are compelled to make, of the food consumed by slaves, and of their health and capacity to labor, we, are constrained to regard one who has pursued that business for sixteen months as competent to give his opinion in reference to the amount of food which is sufficient for a plantation slave.-City Council of Montgomery v. Gilmer & Taylor, 33 Ala. 116 ; Johnson v. State, 35 Ala. 370 ; McCreary v. Turk, 29 Ala. 244.

[5.] It was shown that, about the middle of the summer of 1859, the meat on the defendant’s plantation, where the slaves were kept, had been consumed, and that afterwards meat was supplied from defendant’s residence. That proof being before the jury, the defendant-proposed to show that, in December, 1858, a certain ascertained quantity of pork had been provided on the plantation,- and kept on it. This evidence, which was rejected by the court, had, when taken with what had been previously proved, ■ a manifest bearing upon the question of the amount of ■ meat which the negroes had received and consumed ; and the court erred in rejecting it. For this error, the judgment of the court below must be reversed.

We do not think it necessary for us to notice the other numerous questions of evidence presented by the bill of exceptions. Some of them are not very important, and the others may not arise again.

Reversed and remanded.

Stone, J., not sitting,