Reed v. Circuit Court of Howard County , 6 Mo. 44 ( 1839 )

Opinion of Court delivered by

Napion Juff-e.

“A slave, the property of Reed, was indicted in the Howard Circuit Court for arson, convicted, and by the judgment of the Court, was ordered to be sent out of the State for 20 years.

Reed moved the court to tax up the costs against Patrick Woods, who had the slave in his possession, when the arson was committed, under a contract of hire for one year.

But the court refused to do so, and Reed now applies for a mandamus on said court, requiring it to shew cause dec.

The costs were taxed under the 41st sec. of the vii. art. of the act regulating practice and proceedings in criminal cases The section reads, “if a slave shall be convicted of any offence in a case, where, if the convict was a free per-non, he would be liable to pay costs, such slave shall be sold to satify such costs, unless.the owner or master appear and •pay the same within sixty days after they become due.”

■ the. _ 7th art. ofth« ting^prac tico and pro-r>nndirtfr« IT» cccdings in criminal cases,” (R. C. p. 497.) the owner, and not the temporary ‘“;eofcaOIlvie. ted in case» therein ^specified, is the proper person to pay the ooata 0f cm»-viotion, the words “owner or master,” aro most probably synonymous, and mean the owner and not the temporary mas-tor. Da-'is for plaintiff.

•tThe court , , , . , . so to tax the costs and this court is now asked for a mandamus on that court, to shew cause, &c. see Rev. Sta. Crimes and Punishments page 216 sec. 35. See do practice and proceedings in criminal cases article sec- 41 page 497. See also session acts of Legislature of IS38 page 60. Title Crimes.”

It is urged, that the words owner or master in this clause, are not synonymous — and that thé bail or temporary owner “ ' ■ -r, of the slave should pay the costs in this case. By way ox interpreting the intent of the JWislature in using the words “master or owner,” counsel havp refered to the 35th sec. Ix Art. of the Act concerning '-primes and their punis.i-inents. That section provides th&t the person injured by ■She acts of a slave, in specified cases>( shall “have an action against the master or owner of such slave/or the time, to recover any damages &c. not exceeding in amount the value of such slave.”

It is obvious, that the last section cited uses the words Blaster and owner in the same sense — The quantum of damages being the value of the slave. The legislature never intended that the bailee of a slave for a year or a month, should he re ipon.-sible for an amount equal to the value of the slave. The words ired in that section “for the time,,” ®re either siq.-cvíluous, or most likely were intended to imply, that the action must be brought against the person ©wning the slave at the time the felony is committed — not* withstanding such owner may afterwards part with his interest.

The words in the 41st section are most probably synony-redus — but whether so, or not, cannot affect the merits of Mr, Roods ’¡pplicution. If synonymous, they must have ; 'meant the owner and not the temporary master, otherwise .they would not have ordered the slave to be sold pay the •' v i •> «'©sts.

This would have a gross injustice to the owner, were the temporary master’s, duty to pay them. ip it 11 11 If the words be not synonymous, then .the circuit court had a dis-.‘•retion, and nothing is shown that discretion was not soundly exercised, hereto satisfy this court,

.Mandamus refused.”