#### The State v. Tom, a slave,

From Craven.

.A conspiracy to murder, unaccompanied by an intent to rebel or mak,e> insurrection, is witiiin the meaning, as well as the words of the act of 1303 fBev. c. 618) to prevent conspiracies and insurrections among slaves.

On an indictment for conspiracy against two, the acquittal of one is the acquittal of the other.

The prisoner was indicted under the act of 180% f£ev. c. 618) as follows :

« THE 'jurors, &c. that Donum, a slave, the property of E. S. 21. “ Tom, a slave, the proper y of S. F. (and six others) on, &c, at, “ Sec. unlawfully did arm the mselves with guns uid fire-arms, and beet ing so armed with guns and fire-arms as oforesa'-d, unlawfully did “ assemble and meet together, and being so unlawfully assembled, “ &e. did then and there feloniously and wickedly consult, advise, <' and conspire to rebel and make insurrection, contrary to the form (c of the statute, Etc.

« And the ju-ors, &c. do further present, that the said Tom, &c, “ the said Donum, &c. (and six others) afterwards, &c. did -inlaw* “ fully arm themselves with guns and fire-arms, and being so armed, “ & . did meet and assemble, &c. then and there feloniously and. “ wickedly did plot and conspire the murder of one William Duncan, “ contrary to the form of the statute, &c.”

*570Dec. 1830.

Upon this indictment, Donum was first tried and acquitted.

On the trial of the prisoner, no evidence was offered on the first count. The enquiry was confined solely to-a plot, alleged to have been made between the prisoner and Donum' to murder Duncan, without any ulterior views to an insurrection. For the prisoner, the record oí Donum’s acquittal was given in evidence; and his Counsel contended, that as it required two persons to commit the crime charged, if the jury should think that the evidence, inculpating the prisoner, related only to a conspiracy wilh Donum, and with no other, then the record of his acquittal was conclusive evidence that he was innocent, and they could not find the prisoner guilty.

His Honor Judge Donnkli instructed the jury, that the record a? Donum’s acquirtal was not, upon this trial, conclusa e, but was strong prima fade evidence that Donum was not. guilty, so far as his guilt was a necessary fact in establishing that of the prisoner’s. That the prisoner could riot be found guilty, from the very nature of the charge, unless the jury were satisfied of the guilt of another of the persons charged in the indictment, as it required the concurrent guilt of two to commit the offence; and that, in giving to the record of Donum’s acquittal the full weight to which it. was entitled, as the finding of another jury on the very point in issue, they should still be fully satisfied, from the whole evidence before them, of the guilt of the prisoner, in plotting and conspiring with Donum the murder of Duncan, then they might find him guilty.

The prisoner was convicted, and judgment of death was pronounced ; from which lie appealed.

Gaston, for the prisouer, moved for a new trial:

1. For misdirection, as to the effect of the record of Donum’s acquittal.

2. Because the act of 1802 does not extend to a conspiracy, having no tendency to a rebellion or insurrec-*571lion. And upon tlie.se two points, the case was argued' by bina and the Attorney-General, in this Court.

Ruffin, Judge.

The words of the art of 1802, (Rev. c. 618) — *• if any number of slaves shall plot or conspire the murder of any person whatsoever, they shali suffer death,” upon which the second count of the indictment is drawn, do by themselves create a substantive offence_ Arguments from the context have been urged to show, that they are connected with the preceding words— (i shall conspire to rebel, or snake insurrection avid that no conspiracy to murder is within the act, unless it have also for its object a change of the conspirator’s state of servitude.

The Court certainly is not inclined to tear any part of a penal law from its context, to make it more severe__ If the obvious sense of particular words could be restrained by the general purview of the act, the Court would not only feel at liberty, but hound to put the mildest interpretation on them. That would be to obey the words of the Legislature in their true meaning ,* that is, as .collected from all tiie words used.

But we cannot disobey the plain mandate of a statute, expressed in a distinct and substantive manner $ unless indeed the context does show, that the obvious sense is not the true sense. Here two different kinds of conspiracy are expressly and severally mentioned in the first Section ; “ If any number of slaves shall conspire to rebel or make insurrection, or shall conspire or ¡¡lot the. murder qf any person whatsoever.” The structure of the sentence snakes the offences several.

It has been said, that as the act relates to offences committed by slaves, it embraces only such as are connected with their condition as such. That inference by no means follows. It would be to suppose that the Legislature would make no act criminal in a slave, which is not also criminal if done by a free person, unless it *572bad a view to his enfranchisement; and is contradicted by the acts regulating the trading of slaves, besides many others of police.

Nor can the Court yield to the argument, that the Legislature did not intend to apply a higher scale of morality to slaves (han to free persons, by making a bare conspiracy to murder, without a rebellious intent, a capital felony. That is a consideration, not to be addressed to a Court, because it does not aid in discovering the meaning of a law j but rather to the law maker, in settling the policy of it. Yet it would seem obvious to cither tribunal, that the more debased or licentious a class of society is, the more rigorous must be the penal rules of restraint.

The second and third sections relate to accessories, to a conspiracy to rebel or make insurrection. It is thence inferred at the bar, that the principal offence created in the first section must be correlative, and likewise confined to a conspiracy to rebel, or make insurrection.— The argument,! think, is the other way. It would indeed be, absurd to create the offence of the accessory, where there is no principal offender. But that is not the case here. The first section does create the specific crime of conspiring to rebel, to which the two following refer. It is remarkable however, that the two last sections drop the. words <£ plot or conspire to murder.”— What is the inference from that? Certainly that bring accessory to that species of conspiracy shall not he a felony, but It ft at common law ; but not that those words, omitted in the second and third section, should not, when used in the first section, create in that section the principal felony of conspiring to murder.

Another consideration presses itself on our notice_ The crime of conspiring among slaves against the lives of those to whom they owe immediate domestic allegiance is, tho* not of so extensive consequence, more to be apprehended than that of general insurrection. It is wore likely to *573 be of frequent occurrence, and is more dangerous iban the other, because it is not so easy of resistance. It cannot be doubted thaf the Legislature bad, in the passage of this, act, a care of tho lives of those exercising dominion over slaves. Yet hew could a Court put such a meaning upon the terms employed, if their general and more extended signification, as imported by them per se, be once limited as contended for? If the murder meant be a murder growing out of a conspiracy to rebel* then a conspiracy to murder the master, much less any other member of his family, would be out of tito act. For the conspiracy tr> rebel surely means an attempt to throw off, not tho particular allegiance of the master or mistress, but the general allegiance to the country, by subverting the government, or that principle of it which fixes their servile condition.

i therefore think the opinion of the Superior Court right on this point*

The other question is, whether the acquittal of one of two pers'>ns, charged nominalim in the same indictment with a conspiracy, is an acquittal of the other, in this indictment six are charged. The case states, that the evidence went only to a conspiracy between Tom and Donum ; yet the jury found Tom guilty generally. That might well be done, tho’ Donum were not guilty ; because it is sufficient to show a conspiracy between Tom and any one of the others. If the case rented there, the judgment would be without difficulty affirmed ; for tiiis Court cannot grant a new trial, for the reason'that the verdict is against evidence. Hut the Court below instructed the jury, that they might convict the prisoner, altho’ they believed all the other persons, except Donum, t<> be not guilty, notwithstanding She previous acquittal of Donum upo» tsame indictment. The case is, Iherc-fo«e, upon the ir.r.trurtions given, the same as if Domini and the prisoner were the only Defendants.

*574Conspiracy being a crime, requiring the guilty cooperation of two, at least, to constitute it,in which there is a mutual dependence • if the guilt of each upon that of the other, principle would seem to demand, that all the accused should he jointly tried and convicted, or acquitted. In oilier cases of dependent crimes, that upon which the rest depends must be first established, Surh is the law between principal and accessory. The reason is, that there may be as full defence as possible upon the very point of the principal’s guilt, by that principal himself, who is best able to make it. To make that rule effectual, it became necessary to establish another, that, but by the accessory’s own consent, no proof of the principal’s guilt should be heard against him, until it was first, established against the principal himself. The rule arises out of the nature of dependent criminality. Now conspirators may be said to be co-principals. The guilt of both must concur, to constitute that of cither ; and it must consist of a joint act, and it makes one crime in both. As the trial of one need not precede that of (he other, the trial of both ought to be concurrent. I think it more than probable, that anciently such was the. course. But clearly, now it is ot her wise. There are many precedents of the separate trial of persons indicted for offences, that could not be committed by less than two. (Rex v. Sudbury 1 Lord Raymond 484. S. C. 12 Mod. 262. Rex v. Kinnersly, 1 Str. 193. Rex v. Niccolls, 2 Str. 1227.) It is too late now to question it.

But it can never follow from those cases, that where one of the persons, the establishment of whose guilt is essential to the conviction of the other, has been legally acquitted, the other does not also thereby become discharged. It cannot be, that a man can be held guilty to any purpose, who lias, in due course of law, been found not guilty. The analogy between this case and that of the accessory ik strict. The acquittal of the principal is an immediate and absolute discharge of the accessory *575Fop there can be no aid given to a deed, when the deed itself was never perpetrated. So, where guilt consists in the joint act or intent of two, and it is found that one of them did not join in the actor intent, it is conclusive as to both. For A could not conspire with B, if the latter did not conspire at all. In all the cases, therefore, a verdict affirming the guilt of fewer persons than could commit the crime, and affirming the innocence of all others charged, has been held to be an acquittal of all. That of Rex v. Sudbury, before cited, was for a riot. Two of the Defendants were found guilty, and the others acquitted ; upon which all wore discharged. This case is fully recognized in Rex v. Scott (3 Bur. 1262) where six were indicted for a riot j two. were not tried, two acquitted, and two convicted. There was judgment against the convicts, because the verdict must be held to find them guilty with the two not tried. If all had been acquitted but the two, Lord Mansfield’s opinion would have agreed with Lord Holt’s. The doctrine (if this last case, it will be seen, is, that some of the offenders may be punished, before the guilt of all is established against all, and in that respect, agrees with the previous cases of ICinnersly and Niccolls. These were indictments for conspiracy. in each of them, one Defendant was found guilty , but in one of them the other was dead, and in the other, not in Court. There were, motions in arrest of judgment, on the ground that both should be convicted, and that the dead man never could be, and line other never might be tried, or might be acquitted, which would make a contradiction in the record. The motions were overruled; because the guilt of the co-defendant was found, as against the convicted Defendant, and there was then no repugnancy ; arid where the one was dead, there could not be another trial, and therefore no contradiction and where one had not pleaded, though he was not concluded by the first verdict, and might traverse his own guilt, and be subsequently acquitted, yet the *576possibility of it should not intercept tlie stroke of justice on him already found guilty. This is the whole extent of those cases : that where one party has not been tried, and can or may never be tried, the other, being convicted, shall immediately suffer. But they neither touch the question, what shall be the effect, upon him who is attaint, of the subsequent trial and acquittal of the other Defendant; nor the other question now before us, what shall be the effect of the previous acquittal of the other Defendant. Upon those points, I have been able to find no adjudged case. But we are not left without analogies, equally instructive. An accessory may, at his own desire, be tried before the principal, and by consequence may be convicted and punished. Yet, where both have been attainted, the reversal of the attainder of the principal ipso facto reverses that of (he accessory, and his' heir may enter (Lord Sanchar’s case, 9 Rep. 117). This follows, from the dependent nature of the charge against the accessory. If a reversal, for mere error in law, of the principal’s attainder thus operates in favor of the. accessory, the conclusion seems to be a necessary one, that tin? subsequent acquittal of In- principd by a jury shall have an equal effect. And as the accessory could not again be put upon trial, or rather convicted, fir want of a conviction of the principal, the inference cannot, be avoided, that by such subsequent acquittal of the principal, the accessory is also acquitted. The corpora! suffering cannot indeed be cancelled. But all the continuing consequences — corruption of blood, escheat and the like — immediately cease. If the acces-ory may thus avail himself of the subsequently established innocence of the principal, much more would we expect the previous acquittal of the latter, to be the acquittal of the former. Ajid so we find it immetnorialiy held. And so, 1 think, it is in conspiracy and other like cases. A conviction and sentence of one only,, are abrogated by the subse-*577{Juetit acquittal of all others named, the indictment not being mm maltis aliis. All the remaining effects of the judgment cease $ the character becomes purged, and the party’s free law and competency, ut vir bonus et legulis, restored. And a previous acquittal of all the persons but one, between whom the conspiracy is laid, absolutely negatives the guilt of that one ; and lie stands thereby acquitted,

I have said, that I find no case adjudged directly in point. But Rex v. Niccolls, is much more fully reported than in Strange, in a note to Rex v. Oxford (13 East 412). And the reasoning of Chief-Justice Lee, as there given, is strong to support the positions here taken. To illustrate his argument against the motion in arrest, the Chief-Justice puts the case of an action of conspiracy, where one is found guilty upon issue joined, and the other demurs, and has judgment for him. ‘* That shall not,” he says, “ discharge him who is attaint, if the cause of the demurrer do not go to the gist of the conspiracyThis certainly yields to the other side their postulate, that if one be acquitted, though not by the same inquest, the dther shall be too. For the way in which he puts it, is stronger than a direct assertion, that if the demurrer went to the gist of the action, a judgment on it for the Defendant, who put it in, would discharge him who was-attaint. He takes it for granted, as a thing not to he disputed. If this be the case on demurrer, it must bq also on a verdict. It is true, be is speaking of a civil action, in which judgment cannot be rendered against one Defendant alone, as it may upon indictment. But I do not perceive any distinction growing out of that circumstance. The guilt of one Defendant is, in both in* Stances, established by a method, and at a time, dis* tinct from th w by which the innocence of the other appears. The true principle is, that both the guilt and innocence of the party attainted, are affirmed in different parts of the proceedings, and so the record is nugatory: *578and on the side of humanity, innocence is presumed. It then amounts to the acquittal of him who was convicted; because the acquittal of ttie othei trial of either, for that offence. is a bar to a second

There are other instances, presenting a strong analogy. I allude to action.-, against several, in which one suffers judgovnit, by default, and the oth,er pleads to issue, which is found for him. In cases of contract, a verdict for one enures to the benefit of both; because the contract alleged being joint, the verdict is a demonstration of record, that it did not exist., and the final judgment is arrested. (Porter v. Harris, 1 Lev. 63—Shrubb v. Barrett, 2 H. Bl. 28). It ¡s otherwise generally, in torts and crimes, because they are joint and several. — > But even in torts, if the plea of one Defendant be not personal to himself and several in its nature, but go to the whole action, the rule is the same as that in contracts. (Brigs v. Greinfeild et al. 1 Str. 610. S. C.—2 Ld. Ray. 1372). There two were sued in trespass for seizing and selling Plaintiff’s goods. One let. judgment by default pass ; the other pleaded a distress for rent, and the li-cence and request of the Plaintiff to sell the goods, and it was found for him. The judgment against the first was arrested; because it appeared upon the whole record, that the Plaintiff had no cause of action. Thus, the finding for one or errules the confession of the other in the same suit. These cases arc exactly applicable. It is true, that indictments for conspiracy are not to all intents joint; for, where-more than two are charged, some may be acquitted, and the conviction of the rest, if two, will be good. But it is strictly joint, so'far as respects the constitution of the offence by two. And if it appear in the record, in any manner, that two did not participate in'the unlawful intent, all are discharged; because neither is guilty of that offence. The only departure from this has been, in passing sentence on one, before the other was convicted. But one has never been *579convicted, after all the others charged were acquitted; and wre think cannot be.

If the acquittal of part and the conviction of part be by the same juques:, if is plain from the cases, that all are acquitted, unless the number uf convicts be sufficient to constitute tin* crime. The principie to be. elicited from the cases, and the preceding cour-e of reasoning satisfy my mind, that with the execution of the- intermediate infliction of punishment, between ’he conviction of one and the subsequent acquittal of auoiher, there is no difference between the case of a trial of all by one jury, and the separate trial of each by different juries. The operation, on one, of the acquittal of the other does not arise from tine mode of pronouncing it, but from the fact of the acquittal itself being in due course of law — the guilt of one being dependent upon that of the other.

For this reason the judgment of the Superior Court must be reversed. The judgment of this Court would be, that the prisoner go without day, if only he and Donum were charged ; because the acquittal of Donum would be his acquittal. But as others, not yet tried, are included in the indictment, we can only set aside the verdict for the erroneous instruction to the jury, and submit the case to a second jury, to consider the prisoner’s guilt, as connected with that of the other Defendants, exclusive of Donum.

Henderson, Chief Justice.

I concur in the opinion delivered by Judge lluppiN, that the acquittal of all the conspirators but one necessarily amounts to the acquittal of that one also. For altho’ in the abstract, his guilt depends not upon the conviction of his co-conspirators, but in their participation in the criminal design, yet in law their acquittal shall be taken as conclusive evidence of the want of that participation, as the acquittal of the principal offender necessarily acquits the accessory. The authorities are numerous on the latter proposition j and. indeed so far do they go, that if after the attainder of the *580accessory, who bad consented to be tried before his principal, (and without such consent he could not have been tried,) the principal liad afterwards been tried and acv quitted,- that acquittal ipso facto reverses the attainder of the accessory, and all its continuing consequences are Wiped away, as corruption of blood, all civil disabilities and the like; and consequently the lord’s title by es-cheat is so effectually gone, that the heir of the attainted may enter upon him, arid is not put to his action. If the sentence of the law has not been executed upon him, the judgment is reversed, and the sentence of death or other punishment falls to the ground with the attainder 5 and this as well in oases where they are charged in separate indictments, and of course tried at several times and by different inquests, as where they are jointly indicted, and put on their trials together, and consequently-tried by tlr* same inquest. Cases are not wanting to show, that upon trials for conspiracy, the verdict cannot rightfully affirm the guilt of one, and the innocence of all the others. The furthest they go that way is, to sustain the conviction of one conspirator, where the other is dead, or not taken. But this is done expressly on the ground, that the verdict affirms the guilt of both. I have seen no case, where, after the trial and conviction of one, conspirator, the other (not then being taken) is afterwards brought in, tried &nd acquitted. But if the ground taken to support the verdict, before he is brought in, to-wit, that (lie verdict affirms his guilt, is the one on which it rests (of which there can be no doubt) it is, in such cases, taken away ; for the latter verdict affirms bis innocence. And if the reason of the rule be any thing, and the analogies worth preserving, it must, as in cases of principal and accessory, ipso facto, reverse the first judgment.

It will be perceived, that a strict analogy has not been kept up between cases of this kind, and those of principal and accessory, j for the accessory cannot be com-*581pelted to try before the principal has been convicted, or at the same time with him- In that case, the trial of the principal, in point, of fact, precedes the trial of the acres» sory ; and in all cases, the death of the principal before conviction, amounts to an acquittal of the accessory. But, as stated before, the cases have preserved the principle. They expressly negative all idea of affirming the guilt of one conspirator, and the innocence of all bis co-conspirators. For the conviction of one is sustained on the sole ground, that it affirms the guilt of the other, or others.

The record, taken altogether (for I put the Judge’s instructions into the record) affirms, that Tam and Do-num did conspire to murder Duncan, and that Donum and Tom did not conspire to commit the same murder. "Which shall we take ? We are asked to take that affirmation, which fixes upon Tom the fact, of conspiring, because fie was then on trial; and to disregard the affirmation, which acquits him of it, because he was not then on trial. But the same principle, of humanity, which imparts to the accessory the benefit of the acquittal of his principal, demands that we should accord to Tom the benefit of Donum’s acquittal ; without whose participation, lie, Tom, could not be guilty. For if bangs in equal balance, which affirmation is true. Can we then doubt, which should be taken as a ground of action ? Give to the record what it really amounts to, and it is this : that Tom proposed to Domini to murder Duncan, and that Donum declined to accede to the proposition. This is the extent of Tom’s guilt, giving to ever} part of the record its due weight; and this is not the offence for which Tam stands indicted. For there cannot be a conspiracy, unless at least two unite in an agreement to commit the criminal or prohibited act. I cárt very readily imagine cases, where there may be sufficient evidence to convict one, without its being sufficient to convict the other; as the. confessions of the party, which afs *582feci him, and not the companion, as probably was the case boro. The samo thing might, as well happen in ac-cessorial offences $ arid it is conceded, that in those cases, the legal <cuilt of the accessory is dependent on the conviction of bis principal.

A f-w woods only, in addition to what was said by Judge Uve fin, as to the nature of the conspiracy, and upon the question whether it is within the act of 1802, (Éev. c. 618). The words <>f that act are, “ if any number of negroes or other slaves shall, at any time hereafter, consult, advise or conspire, to rebel or make insurrection, or shall plot or conspire the murder of any person or persons whatsoever, every such consulting,” &c. I would here remark in passing, that by the very words of the act, one person only cannot be guilty of the crime created by it. It is contended, that no murder comes within the act, but one connected with; or in furtherance of the rebellious intent spoken of in the act. 1 think that this construction can be supported, neither b> the words of the clause, nor the context of the act. The crime of murder is a well known and well defined offence, it may be committed in connection with, or in furtherance of the rebellious intent spoken of in (lie act, or in execution of various other designs ; or its commission may be the ultimate intent. To ascertain the crime, as defined by the words, we need not look into other parts of the act. It is sufficiently marked by the words plot or conspire the murder of any one. Nor do the words of the preceding clause look to the murder, as consummating the conspiracy, or as the means of effecting the object. The conspiracy may be complete without contemplating a murder. It contemplates throwing off their servile state. It is true, murder may, and almost certainly would attend its completion. But it does not follow, that by conspiring to rebel, they thereby conspire directly to commit murder j at least, not the murder of a particular individual, which is th* murder provided for *583in the act. But (o my mind, there is an insurmountable objection to confining it to such murders. It would make the clause, in regard to murders, entirely useless. For if such murders only were intended to be embraced, they are sufficiently provided for by the clause relating to rebellion, or making insurrection. For the conspiring to commit murder.1 in furtherance of such a rebellious design, would certainly fail within the prohibition against conspiring to rebel. The offence would be complete by the conspiracy to rebel. The contemplated murder would. be but a means to that end. For the construction asked for, to-wit. that it should be in furtherance of, or in connection with such design, presupposes such design to be formed. To confine it to such cases, therefore, would be to render the clause entirely useless.

Per Curiam. — Let the judgment of the Court below be reversed, and a now trial granted.