#### Matthew Chambers v. The People of the State of Illinois.

Error to Randolph.

1. Indictment — in language of statute. An indictment is sufficient which is in the language of the statute, and so plainly drawn that the nature of the offence may be understood by the juiy. (a)

2. Slavery — harboring a slave. An indictment contained two counts. The first was for ‘‘unlawfully and wilfully harboring a negro woman named Sarah, she then and there being a slave, and owing service to one B, then and there being a resident ” of the county,and the second was like the first, except that instead of alleging that [*352] Sarah was “a slave,” it alleged that she was "an indentured servant:” Held, that both counts of the indictment were good, and that it was no objection to the first count, that it alleged the existence of slavery in this state; and that it was not necessary to a> lege a scienter.

. 3. Evidence — leading questions. As a general rule, it is well settled, that upon an examination of a witness in chief, the party calling him has no right to put leading questions; but there are some exceptions to this rule; as that, in the discretion of the court, leading questions may be put to an unwilling witness, and upon introductory matter as mere inducement to, or explanatory of, the relative evidence, or for the purpose of identifying a person, a witness may be asked if a person in court, or the prisoner at the bar, is that person.

4. Same. On a trial, under an indictment for harboring an indentured colored servant, the master of the servant was called as a witness, and asked if the servant had been living with him, as an indentured servant, since she was assigned to him, which question was objected toby the defendant: Held, that the question was admissible for the purpose of identifying the servant

*3655. Same — secondary. The fact that a person is an indentured servant cannot be proved by parol.

6. Record — verification. "Where the clerk of a court of record affixes his seal to the attestation of an act, the paper is verified without furtherproof.

7. Same — seal omitted. Where the law-required that an indenture should be entered into and acknowledged before a clerk of a court of record, and no seal was affixed to the certificate of acknowledgement, proof of the death and hand writing of the clerk are not sufficient to verify the instrument; it is necessary to prove by some competent testimony, that the person acting as clerk was such.

8. SAME. Where the clerk of a court, which had ceased to exist, was appointed by the governor, a certificate from the office of the secretary of state, or a certificate from the court in possession of the records, would be proper evidence of his official character.

9. Judicial cognizance — justice of peace. The circuit court will judicially notice who are the justices of the peace of the county where the court is sitting, and also their official acts ; but where the official acts of a justice are offered in evidence in a county, other than that in which he resides, they must be accompanied by a certificate from the proper officer, of the official character of the justice.

10. Verdict — one good count. Where a defendant is indicted on two counts, and a verdict of guilty is rendered as to one, and no finding as to the other, the verdictis good, and the court should pronounce a judgment of acquittal on one count, and of conviction on the other.

IX. Same — -when sufficient. A verdict of a jury in a criminal case is sufficient, if the verdict and the proper judgment to be rendered upon it can be pleaded in bar of another indictment for the same act.

The defendant was indicted at the April term, 1843, of the Randolph circuit court, the Hon. James Semple presiding, for harboring a colored servant, and sentenced to pay a fine of $20 and costs. He brought the cause to this court by writ of error. The facts are stated in the opinion of the court.

L. Trumbull, for the plaintiff in error:

The motion to quash the indictment should have been sustained. 8 Ohio 230.

A resident-of Illinois cannot, under the ordinance of 1787, and the state constitution, hold a slave or an indentured servant, which is but another name for slavery ; and an indictment will not lie for harboring a description of person, that by the ordinance and constitution cannot exist. Law of Slavery 340, 356.

The indenture was improperly admitted in evidence :

First. Because by the ordinance of 1787, and the constitution, it is void. Boon v. Juliet, 1 Scam. 258; Thcebe v. Jay, Breese 207.

Second. Because it was not properly proved, when it should have been, the same as any other deed, to entitle it [*353] • to be read in evidence. 1 Stark. Ev. 325 ; 4 Blaekf. 433.

Third. Because it was not proved to have been entered into before the clerk- of the court of common pleas, or that Sarah possessed the requisite qualifications for entering into it. The same objections exist to the introduction of the assignment in evidence, as to the original indenture, with tlieaditional one, that even admitting the constitution to have ratified and made valid the indenture, it has nowhere made valid the assignment. 4 Blaekf. *366522. The official character of the person before whom the assignment was made should also have been proved. 4 Blackf. 433.

The question propounded to Andrew Borders was leading, and therefore improper. 1 Stark. Ev. 149.

Parol evidence is inadmissable to prove matters of record. 1 Stark. Ev. 436.

A verdict must comprehend the whole- issue or issues submitted to the jury, otherwise the judgment founded on it may be reversed. Graham’s Pract. 317.

J. A. McDougall, attorney general, and Wm. H. Underwood, State’s attorney, for the defendants in error.

1. The defendant cannot avail himself of any objection to the indenture of apprenticeship, or contract of hiring. The apprenticeship de facto will always suffice against a wrong doer. 2 Chit. Plead. 646, n.j., though no legal apprenticeship.

Though an apprentice may not be assigned, yet if he continue with his new master, it is a continuation of his apprenticeship. 2 Kent’s Com. 265.

2. Where a witness is dead, proof of his hand writing proves the due execution of the deed. Arch. C. P. 130.

The clerk of the court of common pleas was the only legal and proper witness to such an indenture. Laws of 1807, 424, § 2.

3. The courts will take judicial notice of the clerks of courts of record in the state. The court will presume that the indenture was legally entered into, until the contrary appears. Breese 209.

4. It cannot be assigned for error that the court below permitted a leading question to be put and answered. 2 Phil. Ev. 724, note 506.

5. The offence is described in the terms of the statute (R. L. 206, §149), and is sufficiently technical and correct. R. L. 206, §§152-3. It is not unlawful to harbor an apprentice, unless it is done knowingly (1 Wend. 377) ; and therefore unlawfully necessarily includes knowingly.

They also cited Stoltz v. The People, Ante 168; 11 Ohio 7, 376.

(a)

Cases Citing Text. Rule enforced. Cross v. People, 47 Ill. 152, 157.

See Eells v. People post, 498, 515.

Scates, Justice,

delivered the opinion of the court: [* 354] The plaintiff was indicted for unlawfully and willfully harboring a negro woman named Sarah, she then and there being a slavé, and owing service to one Andrew Borders, he then and there being a resident of Randolph county.

The second count charged him with unlawfully and willfully harboring a negro woman named Sarah, she then being an indentured servant, and owing service to Andrew Borders, a resident of the same county.

There was a motion to quash the indictment, made before trial, which was overruled. Issue was joined upon the plea of not guilty, and a verdict of guilty rendered on the second count *367of the indictment. A motion was made for a new trial and denied.

The bill of exceptions shows that an indenture between Sarah and Wm. Padon was entered into on the 13th of December, 1815, before John Hay, clerk of the court of common pleas of St. Clair county, to serve forty years, and attested by R. K. McLaughlin and Wm, Padfield, was offered to the jury in evidence, after proving the death and hand writing of John Hay; that the defendant objected, but his objection was overruled, and the indenture read in evidence.

. The prosecution also offered in evidence a certain assignment of said indenture, made by Wm. Padon, the master, to Wm. H. Bradsby, made with the consent of Sarah, before John Hay, a justice of the peace of St. Clair county, after proving the hand writing of John Hay to the certificate of acknowledgement; to which objection was made and overruled, and the same was read.

A similar assignment by Bradsby to E. K. Kane, and -by Kane to Andrew Borders, after proving the hand writing of the justices of the peace, before whom they were acknowledged and. made, to the certificates of such acknowledgement, were also offered in evidence, which were in like manner objected to, and the objection overruled, and the assignments read in evidence.

The prosecution then called Andrew Borders as a witness, and asked him if Sarah had been living with him as an indentured servant, since she was assigned to him. To this question objection was made, which was overruled ; and the witness testified that Sarah had been living with him, as an indentured servant, since she was assigned to liim in 1825, and until 1841, when she left. This was all the evidence as to the said Sarah being a slave or indentured servant.

These decisions are assigned for error, severally, as well as the Overruling the motions to quash, and for a new trial, and rendering judgment against the defendant, upon a verdict which found him guilty on the second count, without acquitting him on the first count.

This is purely a statutory offence, and the indictment is in the language of the,act, except that it adds to the [* 355] charge, that it was unlawfully and willfully done; and an indictment so drawn, and so plainly that “the nature of the of-fence may be easily understood by the jury,” has been sustained under our statute. 3 Scam. 476. Having made the charge in the language of the act, we understand the prosecution as undertaking to prove the facts charged, and with that knowledge necessary to constitute a misdemeanor. It has been held in North Carolina, that the word “ harboring” had a legal, definite meaning of “ fraudulent concealment.” Law of Slavery 443, citing Dark v. Marsh, 2 N. Carolina Law Repository 249, July Term, *3681815; 1 Bouvier’s Law Dict. 460, words “ To harbor,” where the definition is given. If we adopt this meaning of the term, as used in our state,it would still be unnecessary to aver a,emente?'in charging such a statutory offence. I think the indictment good as to this objection. The other objection on the motion to quash, that it averred the existence of slavery here, which cannot be under the constitution of this state, I think equally untenable; and the reasons will be found more at large, in the case of Sarah v. Borders., ante 345, and Willard v. The People, post, decided at this term. The motion to quash was therefore correctly denied.

As a general rule it is well settled, that upon an examination of a witness in chief, the party calling him has no right to put leading questions. See 1 Phil. Ev., Cowen and Hill’s Notes, 268-9; 2 Phil. Ev. 722 to 724, Notes 502 to 506 inclusive. There the rule is laid down, and some exceptions to it; as that, in the discretion of the court, leading questions may be put to an unwilling witness; and upon introductory matter, as mere inducement to, or explanatory of the relative evidence; or for the purpose of identifying a person, a witness may be asked if a person in court, or the prisoner at the bar, is that person. I cannot understand even the relevancy of this question," unless it was to identify the woman Sarah mentioned in the indictment, with the vvoman Sarah mentioned in the indenture read. If for that purpose, it might be leading, though not very well calculated to identify. If for the purpose of showing that she was indentured, it was inadmissible; because the indenture itself was higher and better evidence. I regard it in the former light, and therefore admissible.

If the clerk of the court of common pleas, before whom the indenture purported to be entered into, had affixed to his attestation the seal of said court, no proof would have been necessary to entitle the indenture to have been read. Proving the death and hand writing of the clerk was not sufficient. He did not subscribe it as a witness. The law required that the indenture should be entered into before him, as an officer, and acknowledged before him as such.

[* 356] It was necessary, therefore, to prove that John Hay was - clerk, by some competent testimony, there being no seal of office to his attestation. By the 15th section of the act of the territorial legislature, in 1807, (Territorial Law 313,) organizing the courts of common pleas, the Governor was authorized to appoint clerks of said courts. Now a certificate from the office of the Secretary of State, of his appointment, or a certificate from the proper court, now in possession of the records and proceedings of the old courts of common pleas, would be proper evidence of his official character.

In relation to the assignments, which, by the act of 1807, (Territorial Laws 607,) were to be made before some justice of the *369peace, who was required to attest the same in writing. The circuit court will judicially notice who are, and the official acts of justices of the peace, certified by them, when sitting in the county of which they are justices; but when the official acts of justices of a foreign county are offered in evidence, they should be.accompanied by certificate, from the proper officer, of his official character. It was error to admit them.

It is also assigned as error, that the court rendered judgment against the defendant, upon a defective finding of the jury.

This question has already received the consideration of this court, in an analogous case, (Stoltz v. The People, ante 168; 3 Scam 487, 582; and see Ibid. 329,) where the verdict was held sufficient. If it be such a finding and judgment as he can plead in bar of another indictment for the same act, it willafford all the protection which the law intends or he can ask. We think it is; and the court should have pronounced a judgment of acquittal on the first count, on that verdict, which we think an acquittal on that count.

It is the opinion of the court that the judgment be reversed, and the cause remanded, with instructions to the court' below to award a venire de novo.

Wilson, Chief Justice,

delivered the following separate opinion: I concur in the judgment of the majority of the court, but not in the principles laid down in the opinion, which dispenses with an averment of a scienter in the indictment. Such an averment is essential to constitute the offence with which the defendant is charged. The act itself is not malum in se, and only becomes criminal when conjoined with a knowledge of the condition of the person who is alleged to have been harbored. If the defendant did not know that the negro girl was a slave, and owed service in this state, he was guilty of no crime. Without this knowledge there was no criminal intent, and the act was perfectly‘harmless. As the knowledge, therefore, that the' negro was a slave, etc'., was an essential ingredient in the crime charged upon the defendant, it should have been alleged in the indictment. [* 357] Without proof to that effect, it is admitted the offence could not be made out; and if so, it would seem to follow conclusively, that the indictment should contain such a charge. No rule is better settled, than that every indictment for a criminal offence should charge the defendant with everything necessary to constitute the offence, and necessary to be proved in order to convict the offender. 1 do not understand that our criminal code has made any change in this respect. It dispenses with no substantial averment in an indictment, but only with so much of form and technicality as does not impair its sense and obvious meaning. This has been repeatedly decided, and the case in Scammon, referred to in the opinion of the majority of this court,. *370goes no farther. In that case the objection to the indictment was a purely technical one, having reference merely to the grammatical structure and meaning of a sentence. To adopt it as a rule applicable to all cases, that an indictment stating the offence in the language of the statute shall be deemed good, would; in many cases, render them absurd and unintelligible.

Lockwood, Justice,

delivered this separate opinion: I concur with the court in reversing the judgment, on the ground that illegal testimony was permitted to be given to the jury ; but I do not concur in remanding the cause for a new trial. In my opinion the indictment is clearly bad, and should have been quashed by the court below. The indictment contains no averment that Chambers knew that Sarah was an indentured servant. The knowledge of this fact I deem essential to constitute the offence.

I consider the case of Birney v. The State of Ohio, 8 Ohio 230, as laying down the correct rule on this subject. The statutes in both states are almost identical. The court, in delivering its opinion in that case, says, that “ the statute upon which this indictment is predicated, enacts, ‘that if any person shall harbor or secrete any black or mulatto person, the property of another, the person so offending shall, on conviction thereof, be fined in any sum not less than $10, nor more than $50.’ ” The court says: “We are first called to consider, whether, under this enactment, the indictment is sufficient. It is required that every indictment shall have a precise and sufficient certainty. The omission of a word of substance is fatal. 2 Hawkins P. C. eh. 25, § 4. There the plaintiff in error is charged with harboring or secreting a certain mulatto girl, by the mame pf Matilda, tb e property of L. Larkin. There is no averment that the plaintiff in error knew the facts alleged, that Matilda was a slave and the property of L. Larkin, or of any other person; and such is not the legal inference, in a state whose constitution declares [* 358] that all are born free and equal, and that there shall be neither slavery nor revoluntary servitude within its limits, except as punishment for the commission of crimes. On the contrary, the presumption is in favor of freedom. The scienter, or knowledge of the plaintiff in error, of this material part, was an ingredient; necessary to constitute his guilt. This knowledge should have been averred in the indictment, and proved on the trial; for, without such knowledge, the act charged as a crime was innocent in its character. We know of no case where positive action is held criminal, unless the intention accompanies the act, either expressly or necessarily inferred from the act itself. Ignorantia facti doth excuse, for such an ignorance, many times, makes the act morally involuntary. 1'Hale’s P. 0. 42.”

“ It is true that the statute, upon which the indictment is founded, omits the seienter, and the indictment covers all the facts *371enumerated in that statute. But this is not sufficient; it cannot be assumed that an act, which, independent of positive enactment, involves no moral wrong, nay, an act that in many cases would be highly praiseworthy, should be made grievously criminal, when performed in total Jinconsciousness of the facts that infect it with crime. This court has determined differently. In the case of Anderson v. The State, 7 Ohio, Part 1, 255, the plaintiff in error was indicted for uttering and publishing a forged certificate of deposit, without averring his knowledge of the 'forgery. The statute, under which the indictment was found, does not, in express terms, make this knowledge a constituent of the crime. Nevertheless, the court held that the criminality could not exist without the knowledge, and that an indictment that did not aver it was defective.”

It was urged on the argument of this cause, that, as the indictment averred that Chambers unlawfully harbored the servant, that this averment included the scienter.

In the case referred to, decided in Ohio, the same word was used in the indictment, but the court held that it did not dispense with an averment of the scienter.

No principle is better settled, both in civil and criminal pleadings, than that, the plaintiff or prosecutor is not bound to prove, on the trial, that which he is not compelled to aver in the declaration or indictment. If the indictment is good, without averring that the accused knew that the colored person was a servant, it would be equally good, without averring that the defendant unlawfully or willfully did the act.

Our statute omits not only the scienter, but does not even use .words implying that the secreting must be unlawfully or wrongfully done, in order to constitute the offencé.

Yet what court would decide, that an offence of this description could be committed, if the defendant was ignorant of the fact that the person harbored or secreted was a servant or [* 359 ] slave ? If the offence, however, is to be considered as consummated by harboring or secreting any negro, mulatto, or colored-person, who turns out to be a slave or servant, it will be dangerous for the people of this state to extend the most common offices of humanity to that unfortunate class of mankind, to whom God has given a skin colored differently from ours. It would be illegal to receive such persons into our houses, although they were perishing in the streets, with hunger, cold, or sickness.

The ease in Ohio completely illustrates the consequences that I have stated. The indictment in that case contained nine counts, several of which averred that the defendant harbored the slave, well knowing that .she was a slave, and a fugitive from service. The first count, however, only averred that the defendant “ un*372lawfully” “harbored or secreted a certain mulatto girl, by the name of Matilda, then being a slave,” and the property of one L. Larkin, “ contrary to the form of the statute,” etc. The jury found the defendant guilty on the first count of the indictment, and not guilty on all the other counts. Had there been proof, on the trial, that the defendant knew that Matilda was a slave,the j ury would undoubtedly have convicted him on the counts containing that averment. The court who tried the cause must have decided and decided correctly, if the first count was good, that to convict the defendant on that count, no evidence was necessary to prove that the defendant had knowledge that Matilda was a slave.

The 152d section of our criminal code was relied on, as justifying the indictment in this case. That section reads as follows : “ Every indictment or accusation of a grand jury shall be deemed sufficiently technical and correct, which states the offence in the terms and language of this code, or so plainly that the nature of the offence maybe easily understood by the jury.” Had the word “ and,” instead of the word “ or,” been used in this section, little difficulty would have arisen,in requiring that the indictment should substantially contain every necessary averment that enters into the nature of the offence. If the court, however, are not permitted to read this statute in the manner above indicated, it is still the duty of the court, in construing statutes, to look not only to the language of the particular section, but to the context, and also to the effects and consequences.

The 158d section of our criminal code, requires that “ all exceptions which go merely to the form of the indictment shall be made before the trial, and no motion in arrest of judgment or writ of error shall be sustained, for any matter not affecting the real merits of the offence charged in such indictment.” This'section clearly implies, that all respect to form is not to be disregarded, and distinctly recognizes the principle, that “ every matter affecting the real merits of the offence must still be included in the [* 360 ] indictment, to render it sufficient, even after verdict.

The gist then of the offence of harboring or secreting a slave or servant consists, as well in the fact of harboring or secreting, as in the knowledge that the person so harbored or secreted was a servant or slave. The harboring or secreting and the scienter must both, concur to constitute the offence, and to have a good indictment, both should be positively averred.

As the count on which Chambers was convicted is materially defective, I am of opinion that the judgment below should be reversed.

Catón, Justice, dissented.

Judgment reversed.