{
  "id": 11276144,
  "name": "The STATE v. JOHN HANEY",
  "name_abbreviation": "State v. Haney",
  "decision_date": "1837-06",
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    "parties": [
      "The STATE v. JOHN HANEY."
    ],
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      {
        "text": "Gaston, Judge.\nWe have deliberately considered of all the objections presented on this record to. the regularity of the conviction of the prisoner.\nThe indictment contains two counts. The first charges \u201c that John C. Hardin, John Haney and John W. Williams, on the 1st of January, 1837, with force and arms, in the county of Rutherford, one negro man slave, by the name of Eli, then and there being the property of Nancy Davis, of the value of fifty dollars, feloniously did steal, take and carry away, contrary to the form of the statute in that case made and provided, and against the peace and dignity of the stateand the second charges, \u201c that the said John C. Hardin, John Haney and John W. Williams, on the day and year aforesaid, with force and arms, in the county aforesaid, one other man slave, named Eli, then and there being the property of- Nancy Davis, and then and there in the possession of her, the said Nancy, feloni-ously by violence, seduction and other means, him the said man Eli, slave as aforesaid, against the will and consent of her, the said Nancy,Davis, owner as aforesaid, did take and convey away from the possession of her, the said owner, with an intention the said slave to sell, dispose of and convert to their own use, contrary to the form of the statute in that case made and provided, and against the peace and dignity of the state.\u201d The said John C. Hardin, John Haney and John W. Williams having been arraigned, pleaded not guilty; and, by consent of the counsel for the state and of the prisoner, he was put upon his trial, separate and alone from the other two persons accused. The prisoner thereupon, by his counsel, prayed the Court that the solicitor for the state should elect upon which of the two counts he Would try the prisoner; which prayer was over-ruied by the Court. The prisoner was then tried and found \u201cguilty of the felony and seduction in manner and form as charged in the second count of the bill of indictment, and not guilty in manner and form as charged in the first count of said bill.\u201d\nIt is no objection on a demurrer, and is certainly, therefore, not good in arrest of judgment, that several felonies are charged against a prisoner in the same indictment, for on the face of an indictment, every distinct count imports to be for a different offence. It is, however, in the discretion of the Court, to quash an indictment, or compel the prosecutor to elect on which count he will proceed, when the counts charge offences actually distinct and separate. They exercise this discretion, lest the prisoner should be confounded in his defence, or be prejudiced in his challenges tothe jury ; for he might object to a juryman trying one of the offences, when he would have no objection to his trying the other. But in, this case, there was no pretext for asking this indulgence of the Court, as the indictment accused the prisoner but of one-criminal act, charged under different modifications, so as to correspond with the precise proofs that might be adduced. The prisoner could not pretend, that these modifications of the charge increased the difficulty of making a fair defence; or prejudiced him in his challenges.\nThe evidence offered on the trial, if believed, established a case of a concerted scheme between the prisoner and Hardin, to seduce the negro slave Eli from the possession of his mistress, and carry him to the state of South Carolina, to be sold, for their benefit, and that of their associates. The principal witness for the state, an accomplice in the crime, testified to the seduction and procuring of the negro by the prisoner, and to the arrangements made between the prisoner, Hardin, and himself, for the conveying away of the negro; and was proceeding to testify as to the manner in which' the negro was conveyed away and sold, in which part of the transaction the witness was the principal agent, when he was asked by the prisoner\u2019s counsel, whether he had seen the prisoner, after the making of these arrangements, and answered, that he had not, until after his return from South Carolina. The prisoner\u2019s counsel then objected to any evidence being given against the prisoner, of what'was done by the witness in the interme-d\u00edate time. This objection was overruled ; and the witness proceeded to state circumstantially his journeying on with the negro; his attempt to sell him to one person; his subsequent sale of him in South Carolina; his return to this state; and his here meeting with the prisoner and Hardin, and dividing with them, the proceeds of the sale. We are of opinion, that there was no error in receiving the testimony objected to. That one man should not be criminally affected by the acts or declarations of a,stranger, is a rule founded in common sense, and resting on the principles of natural justice; and therefore a mere gratuitous assertion by any one, inculpating himself and others as fellow conspirators, should never be received as evidence against any person but himself. But where a privity and community of design has been established, the act of any one of those who have combined together for the same illegal purpose, done in furtherance of the unlawful design, is, in the consideration of law, the act of all. 2 Stark. Ev. 233, 234, 235. The cases in which this doctrine is most frequently applied, are those of treason and conspiracy, where it is perfectly settled, that after proof of the association for a traitorous or illegal purpose, the declarations, acts and conduct of all the associates, in furtherance of their common purpose, is evidence against each and every of them. But it is not confined to indictments for treason and conspiracy. It is immaterial what is the nature of the indictment, provided the offence involve a conspiracy. Thus, upon an indictment for murder, if it appear that others, together with the prisoner, conspired to perpetrate the crime, the act of one, done in pursuance of that intention, is evidence against the others. See State v. Poll and Lavinia, 1 Hawks, 442. The only plausible objection to the testimony received, is, that it was unnecessary; for that the crime charged against the prisoner consisted in the taking of the slave, with a felonious intent, and that crime could not be varied by any acts done by another, though with the concurrence of the prisoner, subsequently to the taking. But it is plausible only. If the objection were well founded, it would apply to evidence of his own acts, subsequent to the original taking; for they can- . 7 , \u2022 . , i \u25a0 t> not impress a new character upon the original taking. \u00b15ut such acts, whether done by himself, or by his agent, are. material and relevant, as tending to manifest the character and design of the original act. They are the accompanying, surrounding, and consequent circumstances of a transaction, the more of which is known, the more thoroughly the transaction itself is understood; and they furnish the means, by their concurrence with, or opposition to, other matters given in evidence, of testing the veracity and accuracy of the witnesses by whom they are testified.\nTwo exceptions have been taken to the charge of the judge. 1st, For that the Court refused an instruction which was prayed for, that the jury ought not to find the prisoner guilty upon the evidence of an accomplice, unless that evidence was corroborated as to the agency of the prisoner in the transaction; and 2dly, For that the Court recited the testimony on the part of the state, without reciting any of the testimony on the part of the prisoner.\nIn relation to the matter of the first exception, it appears that his Honor instructed the jury, that an accomplice was a competent witness, but it was unsafe to find, and a jury ought not to find, a verdict of guilty, upon the evidence of an accomplice, unless that evidence was supported in some of its material parts by other evidence, so as to carry to the minds of the jury a full and entire conviction of its truth; and being specially called upon to instruct the jury that the evidepce of an accomplice, although supported in material parts of the general narrative, must also be supported in material parts as to the personal agency of the prisoner,' declined to give the instruction as prayed ; and charged the jury, that the law did not make such a confirmation indispensable, although it would be more satisfactory ; and that if the evidence of an accomplice, from the manner in which it was given, and from the support which his general narrative received from other testimony, carried to the minds of the jury full and entire'conviction of its truth, it was sufficient to authorize a verdict against the prisoner, although the narration was not supported by other evidence, in that part of it in which tlie prisoner is stated to have had a personal agency.\nThis Court understands the rule of law to be, that the unsupported testimony of an accomplice, if it produce undoubting belief of the prisoner\u2019s guilt, is sufficient to warrant a verdict affirming his guilt. Such is certainly the law of the country from which we have derived the principles of our jurisprudence. It is so laid down by Hale, 1 Pleas of the Crown, 305, although he adds, that it would be hard to take away the life of a man upon it, The doctrine is explicitly stated in Hawkins, B. 2, ch. 46, sec. 92, with the remark, however, that \u201c it seems to be the general opinion, that unless some fair and unpolluted evidence corroborate and give verisimilitude to the testimony of an accomplice, a person convicted under such circumstances, ought to be recommended to mercy.\u201d The very point was solemnly adjudged by the twelve judges of England, in Atwood and Robins\u2019s Case, 1 Leach\u2019s Cro. Ca. 464, who held unanimously, that an accomplice is a competent witness; and if the jury, weighing his testimony, think him worthy of belief, a conviction, supported by such testimony alone, is perfectly legal. The same was afterwards held in Durham and Crowder\u2019s Case, 1 Leach\u2019s Cro. Ca. 478; and in the case of Rex v. Jones, 2 Camp. 132, Lord Ellenborotjgh observed, that \u201cno one can seriously doubt, that a conviction is legal, though it proceeds upon the evidence of an accomplice only. Judges, in their discretion, will advise a jury not to believe an accomplice, unless he is confirmed, or only so far as he is confirmed; but if he is believed, his testimony is unquestionably sufficient to establish the facts he deposes. It is allowed, that he is a competent witness; and the consequence is inevitable, that if credit be given to his testimony, it requires no confirmation from another witness.\u201d We are not aware of any judicial decision in our country, at variance with the rule brought hither by our ancestors. It is impliedly recognized in The State v. Twitty, 2 Hawks, 449, where the. Chief Justice, delivering the opinion of the Court, that a witness might be called to support the credit of an accomplice, before the latter had been a(_tacked, because he was necessarily exposed to suspicion, by reason of his being an acknowledged accomplice, observes, \u201c though an accomplice is a competent witness, yet his unconfirmed evidence is usually received with caution, and distrusted by a jury;\u201d and in the State v. Weir, 1 Dev. Rep. 363, the rule is referred to by the Court, as being now perfectly settled: \u201c It is now settled, that his evidence,\u201d (the evidence of an accomplice) \u201c may be left to the jury, who, if they believe him, may convict the prisoner.\u201d\nIf this be the settled rule, it follows, necessarily, that the exception taken cannot be sustained ; for no one can require of the judge to give an instruction to the jury, except on the law of the case. The judge may caution them against reposing hasty confidence in the testimony iof an accomplice. It is usual \u2014 justifiable\u2014and, we add, it is proper to do so, where he has cause to apprehend that the jury may feel themselves bound to find a verdict conforming to the positive testimony of the witness, without weighing the circumstances <?f suspicion and distrust under which his testimony is rendered. Long usage, sanctioned by deliberate judicial approbation, has given to this ordinary caution a precision which makes it approach to a rule of law. Jurors are advised, that it is deemed hard, and that it is unsafe to convict on the testimony of an accomplice, unless that testimony receive material support from evidence derived aliunde, coinciding with it in considerable circumstances, as to leave no rational doubt in their minds of its truth. In what parts of the details of the testimony this confirmation should be had, in order to remove the jealousy and suspicion to which the testimony is exposed, and to create such a degree of confidence in the general credibility of the witness, as to command faith in those parts of his narrative where he is not thus supported, the judge has not the right to direct or adv ise the jury. Speculative writers have indeed u ndertaken with much ingenuity to devise rules of faith on thesubject, but the lawis wholly silent concerning them. Toleratingand approving of the general caution, it trusts the application of the caution, under all the circumstances testified, wholly to the intelligence and integrity of the jury.\nThe cases of The State v. Hall, 2 Hay. 105, and The State v. Jernagan, 3 Murph. 12, approved.\nWith respect to the matter of the second exception, it appears from the judge\u2019s charge, which is spread upon the record, that his Honor did not undertake to recapitulate the evidence to the jury, but only to direct their attention to the important questions which they were called upon to investigate; and to explain to them the law applicable to the case. It is not stated that he was called on, either by the state or the prisoner\u2019s counsel, to give a more' full charge; nor is it seen, that the purposes of justice required it. The great matter in controversy was the degree of credit due to the testimony of Robins; and to us it appears, that with great propriety he called the attention of the jury to the matters in which it was alleged that this testimony was corroborated by that of others \u2014 laid down the rule of law thereon benignantly for the prisoner \u2014 and fairly left the whole case to the jury, with an injunction to give to every circumstance of it a careful consideration, without any departure from impartiality in collating the evidence, or any intimation of his opinion thereon. See State v. Lipsey, 3 Dev. Rep. 485. This objection to the charge seems to us, therefore, also unfounded.\nSeveral objections were urged below in arrest of judgment, because of insufficiency, uncertainty, and repug-nancy in the count whereon the prisoner was convicted; and others have presented themselves to us, as not undeserving of notice.\nIn the first place, it is objected, that this count does not bring the offence charged within the words of the statute whereon it is founded. The criminal intention charged in the indictment is, \u201c with intention the said slave to sell, dispose of, and appropriate to their own use.\u201d The offence described in the statute is to \u201c steal, or by violence, seduction, or any other means, take or convey away any slave, the property of another, with an intention to sell, or dispose of to another, or appropriate to their own use, such slave.\u201d It was settled, in the case of The State v. Hall, 2 Hay. Rep. 105, and The State v. Jernagan, 3 Murph. 12, that the object of the act of 1779, (Rev. c. 142,) was two-fold; 1st, to punish the crime of stealing a slave, with death, by taking away the benefit of clergy, to which the offender was entitled at common law: and secondly, to punish all other means of depriving an owner of his slave, whether by force or fraud, if the taking or conveying away were accompanied with the intention declared in the act, viz. to appropriate to the use of the wrongdoer, or to sell or to dispose of to another\u2014 that the words of the statute declaring the intention, do not qualify the crime of stealing, which necessarily means the taking causa lucri, but qualify the new felony created by the statute, that of taking or conveying away by seduction, violence, or other means. The criminal intention is declared in the disjunctive \u2014 to sell \u2014 to dispose of to another \u2014 or to appropriate to their own use: and these three purposes seem designed to express all those which characterise a larcenous or felonious intention. To sell, means a disposition of the slave to another, for a price: to dispose of to another, embraces transfers made either gratuitously, or for a price; and to appropriate to their own use, describes the keeping of the slave, to enjoy his services. We hold it, therefore, to be clear, that the felony created by the statute, is sufficiently described, so far as intention is concerned, by charging the act to have been done with intent to steal the slave. As sale is one mode of disposition, there is nothing repugnant in charging the intention to have been to sell and dispose of the slave. The latter words are unnecessary, indeed, but, at the worst, they are only redundant, and, in our opinion, do not extend the intention imputed beyond that of an intention to sell. Had the charge stopped here, it would have conformed to that which was pursued in the third count of the indictment in the case of Jernagan, before referred to. It will be seen, that the indictment there contained three counts, the first charging the prisoner with stealing the slave Amos; the second, with taking him by seduction, with intent to appropriate him to his own use; and the third, with [taking him with intent to sell and dispose of him. The counsel for the prisoner took objections to every count in the indictment; but neither they alleged, nor the Court supposed, that the second was objectionable, in charging merely an intention to appropriate to the use of the prisoner, or the third in charging an intention to sell and dispose of to another. If the words \u201c to sell, dispose of to another, or appropriate to their own use,\u201d are to be taken conjunctively, both these counts were clearly bad. But the count in question does not stop here. It charges an intention to sell, dispose of, \u201c and convert to their own use.\u201d We do not hold the term convert, as used in this indictment, to be equivalent to the term appropriate, as used in the statute. The latter is employed in the statute, to contradistinguish the use made of the slave, from a sale or disposition of the slave to another, and necessarily means the retaining of him by the wrongdoer. But conversion embraces any unlawful use or disposition made of the slave. A sale is as much a conversion of him, as a detainer from the service of his owner. Following after, and united by the conjunction \u201c and\u201d to the words \u201c sell and dispose of,\u201d the conversion here charged, means a conversion by sale, and is neither repugnant to the charge of an intention to sell, nor affirmative of any other intention. We hold, therefore, this exception to the count, bad, because we view the sole intention charged, to be an intention to sell. Had the count pursued the very words of the statute, \u201c with intention to sell, dispose of to another, or appropriate to their own use,\u201d it would have been bad, because of uncertainty. Had it varied from them, by changing \u201c or\u201d into \u201c and,\u201d and charged an intention to sell, dispose of to another, and appropriate to their own use, we apprehend, that it would have been bad, because of repugnancy.\nIt is further objected that the indictment is double, and repugnant, in charging that the prisoner took and conveyed away the slave, \u201c by seduction, violence, and other means;\u201d and also in charging the intent to be \u201c to sell, dispose of, and convert to their own use.\u201d The latter part of this objection has been disposed of in considering the first objection; the former part of it remains to be examined. There is no repugnancy in the accusation, as both seduction and violence may have been used in carrying into execution the criminal purpose charged; it may ^ave keen e\u00ae\u00aecte(^ \u2019n Part by one, an<^ Part ^e other means; but it is not so obvious that the indictment is not liable to the objection of duplicity. We are inclined to think that if the objection did exist, it would furnish no sufficient reason for arresting the judgment. \u201cIn civil actions, the usual mode of objecting to pleadings for duplicity, is by special demurrer; it is cured by a general demurrer, or by the defendant\u2019s pleading over. In criminal cases, the defendant may object to it by special demurrer, or the Court, in general, upon application, will quash the indictment; but it is doubtful whether he may avail himself of it on general demurrer; it is extremely doubtful if it can be made the subject of a motion in arrest of judgment, or of a writ of error, and it is certainly cured by a verdict of guilty as to one of the offences, and not guilty as to the other.\u201d Archb. Crim. Plead. 55. The verdict in this case does not, in express terms, negative the other means charged to have been employed by the prisoner, but we understand it as affirming only that by seduction. It finds the defendant \u201c guilty of the felony and seduction, in manner and form as charged in the second count of the bill of indictment.\u201d But however this may be, we are of opinion, that the indictment is not vicious as is objected, because of duplicity. A criminal act may be carried on through the agency of several means, and although it would be equally criminal if but one alone had been used, yet when all have been employed, it is nevertheless but one crime, and it may be charged as one crime, with all its attendant circumstances. Thus, the precedents show us, that under the statute whieh punishes as a felony, the demanding of moneys, chattels, or valuable securities \u201c with menaces or force,\u201d the indictment may set forth the demand to have been made with menaces, or to have been made with force, or to have been made with menaces and force. Archb. Crim. Plead. (5th ed.) 230. So under the statute which makes it felony \u201c by force or fraud,\u201d to carry away children under ten years of age from their parents, we find precedents of counts charging the taking by force; others charging the taking by fraud; and others charging the taking by force and fraud. Archb. Crim. Plead. (1st ed.) 257, and same 5th efl. 371. So if an offence be cumulative with respect to the acts done, although any one of the acts be sufficient to constitute the crime, the cumulative offence may be charged. Thus under the statute inflicting severe penalties on any persons who shall buy or receive certain stolen goods knowing the same -to have been stolen, it is the customary form, to charge that the offender did buy and receive such goods. Stubb\u2019s Cro. Cir. Com. 414. Thus, also, the statutes against forgery, describe the offence to be i! to forge, or cause to be forged, or wittingly aid and assist in the forging of notes,\u201d &c. An indictment setting forth in the disjunctive, that the defendant did forge or cause to be forged, is unquestionably bad ; while it would certainly be good if it positively charged the offence in either way. King v. Stocker, 5 Mad. Rep. 137. 1 Salk. 342, 371. Yet all the indictments in the Federal Courts of this Circuit, under the act of Congress, on the forging of United . o o \u2022 States Bank notes, following the English precedents on a similar act of parliament (see 3 Chitty\u2019s Crim, Law, 1052,) charge cumulatively in one count, that the defendant did falsely make, forge, and .counterfeit, and cause and procure to be falsely made, forged and counterfeited, and wittingly aid and assist in the falsely making, forging and counterfeiting. The entire criminal act done, may have consisted of all these parts, and therefore, it may be set forth as such in one count. It is our opinion, that but a single offence was described in the count whereof the prisoner was convicted: that this offence consisted of parts : that the prisoner could not rightfully object to the accusation as double, because the whole of the offence was set forth ; and is liable to the penalty denounced by the statute, because found guilty of so much thereof as brings his crime within its penal enactments.\ncrime \u00a1^commiu ^ by tb| several \u00b0 cribed if agency of fbrgery^ may be charged to have been ^ and by pro-^falsely made,\nConnected with the objection which has been last considered, is one not so distinctly stated as a reason in arrest, but which we have felt it our duty to examine. The second count charges the taking and conveying a^vay to have been by seduction, violence, \u201c and other means.\u201d It these latter words are to be regarded as constituting a material part of the accusation upon which the prisoner has been convicted; it would follow, we think, that the indictment is too vague, to warrant any judgment thereon. Certainly an indictment upon this branch of the statute would be essentially defective, if it omitted to specify any means by which the taking and conveying away were effected. And if these words constitute a material part of the charge, they would seem to render the accusation almost as general as though it contained no specification of the means. We feel very reluctant to sanction any apparent departure from that certainty in criminal accusations, and that propriety of language generally demanded in^them, the observance of which furnishes one of the best securities against oppression ; but after full consideration, we deem ourselves bound to hold that this indictment does specify seduction and violence as means that were employed, and the allegation of other means not specified, must be considered as surplusage. There is a marked difference between the omission in an indictment, of any fact or circumstance, which is a legal ingredient in the offence, and the addition to an offence already legally set forth, of other matters which do not describe an offence. The defendant\u2019s plea denies only the matters charged ;\u2022 no evidence can be received of an ingredient not charged, and no verdict can find it. The omission is, therefore, fatal. But the traverse distinctly puts in issue the offence sufficiently and specifically set forth in the indictment; evidence to support the specific charge is indispensable to a conviction; and the verdict of guilty directly affirms that charge. Therefore is it, that if an indictment be certain in some particulars, and uncertain as to others, it is void only as to those which are uncertainly expressed, and good as to the residue, Hawkins, Book, 2, ch. 25, sec, 74. And nothing which may be rejected as sur-plusage and immaterial shall hurt the indictment. Same, sec. 79. \u2022 If one were convicted upon an indictment for that with force and arms, he had done many grievous wrongs to a certain A. B., no judgment could be rendered thereon; but it is every day\u2019s experience, that judgment may be rendered on a conviction for an assault and battery on A. B., although the indictment also avers that he then and there did many other grievous wrongs to the said A. B. An indictment for stealing divers goods and chattels (one of the instances put by Hawkins,) would be unquestionably bad; but had it charged the stealing of a specific chattel and of divers others, a conviction would establish the precise theft imputed, and warrant the sentence of the law thereon.\nIt is lastly objected, as a reason in arrest of judgment, that the value of the negro is not set forth in the second count. We are of opinion that it is not necessary in that Count, that the value should be stated. Larceny, at common law, is either grand or petit larceny, according to the value of the thing stolen; and in indictments for larceny, the value is always averred so as to enable the Court to ascertain the character and grade of the offence, both in the management of the trial, and in the rendering of sentence after conviction. Whether an indictment at common law for larceny, would be absolutely bad, when the value of the article stolen is not stated in it, or might be sufficient to justify a judgment for petit larceny, may not be a question altogether free from doubt. It would be a hazardous experiment to omit it. In the first count of this indictment, which we have seen is for grand larceny, known as such before the statute, and upon which the statute had no other operation than to take away its clergiable privilege, the value is very properly set forth; and an omission of it would, we apprehend, have been a fatal defect. But the second count is not for a larceny, and could not be supported as a charge of larceny, from the want of the indispensable term, steal. 1 Hale, 504. It is for a felony created by the statute ; and the statute makes it a felony to take or convey away negroes, the property of others, with any of the intents which it describes, without regard to the value of the negroes, and whether they be or be not of any value.\nThere is another objection to the indictment, not indeed, of a weighty character, except that the precise forms of criminal accusations are always important, but which we notice lest it might be supposed to have been overlooked, The entire phrase \u201c him, the said man, Eli, slave as aforesaid,\u201d in the second count, is unnecessary and ungrammatical, ft is unnecessary, for the residue of the count explicitly charges that John C. Hardin, John Haney, and John W. Williams, a certain man slave named Eli, the property of Nancy Davis, feloneously, by seduction, violence, and other means, did take and convey. away. It is ungrammatical for the action of the verbs \u201c take and convey away,\u201d having been spent on the object \u201c one other man slave named, Eli, the property of Nancy Davis\u201c him the said man Eli, slave as aforesaid\u201d is brought in as an object without any verb, by which it is governed. But it cannot avail to arrest the juc*gmenb for not only may it be rejected as wholly superfluous and unnecessary, but because violations of grammar> do not furnish a sufficient objection to the rendition of judgment, if, from the whole tenor of the charge, the statement be sufficiently clear to furnish an intelligible description of the offence, and of the manner of ... committing It.\nAnunne. averment, which ren-indictment ungramma-nottitlate it, although it should be carefully avoided.\nUpon full consideration of ail that* has been objected, or which we could ourselves suggest in behalf of the unfortunate prisoner, we see no error in the proceedings to save him from the sentence of the latv. This opinion must be certified to the Superior Court at Rutherford, with instructions to pronounce sentence of death upon the verdict.\nPer Curiam. Judgment' affirmed.",
        "type": "majority",
        "author": "Gaston, Judge."
      }
    ],
    "attorneys": [
      "No counsel appeared for the prisoner. \u25a0",
      "The Attorney-General, for the state."
    ],
    "corrections": "",
    "head_matter": "The STATE v. JOHN HANEY.\nThe unsupported testimony of an accomplice, if it produces entire belief of the prisoner\u2019s guilt, is sufficient to warrant a conviction. And the usual direction to the jury not to convict upon it, unless supported by other testimony, is only a precautionary measure to prevent improper confidence being reposed in it; and the propriety of giving this caution, must be left , to the discretion of the judge, who tries the cause.\nWhen there are several counts in an indictment, the state may be ruled to elect upon which the trial shall be had; but this is done only to prevent injury to the accused where the counts contain charges of distinct offences, but never where they are only variations in the mode of charging the same. Where an association for a criminal purpose is proved to exist, the acts of one of the associates in furtherance of that purpose, as well as his declarations in respect of it, are admissible against the others; and this where the act or declaration is subsequent to the actual perpetration of the crime.\nA judge is not bound to recapitulate all the evidence to the jury; it is sufficient for him to direct their attention to the principal questions which they have to investigate, and to explain the law applicable to the case; and this particularly, when he is not called upon by the counsel to give a more full charge.\nAn indictment under the act of 1779, (Rev. c. 142,) which charges the seduction of a slave to be with an intent \u201c to sell, dispose of and convert to his own use,\u201d is sufficient. For the felony created by the act, is sufficiently described by-charging the seduction to be with an intent \u201c to selland the words, \u201c dispose of and appropriate to his own uso,\u201d do not extend the intention imputed, beyond that of an intention to sell, and at worst, are only redundant.\nAnd charging the taking to be \u201c by violence, seduction and other means,\u201d is not repugnant, as both violence and seduction may have been used; but if it were double, it is aided by a verdict finding the taking to be by seduction only.\nThe words, \u25a0\u201c other means,\u201d if used alone, would be too indefinite; but taken an connection with the words, \u201c by violence and seduction,\u201d they are merely superfluous.'\nA count on the act of 1779, for the seduction of a slave, need not charge him to be of any value.\nThe prisoner, with two others, were indicted at Rutherford, on the last Circuit, as follows:\n\u201c The jurors for the state upon their oath present, that John C. Hardin, John Haney and John W. Williams, all of, &c., on, &c., with force and arms, in, &c.., one negro-man slave, by the name of Eli, then and there being the property of Nancy Davis, of the value of fifty dollars, feloniously did steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace arid dignity of the state.\n\u201c And the jurors aforesaid, upon their oath aforesaid, do further present, that the said John C. Hardin, John Haney and John W. Williams, on, &c., with force and arms, in, &c., one other man-slave, named Eli, then and there being the property of, &c., and then and there in the possession of, &c., feloniously by seduction, violence and other means, Him, the said man Eli, slave as aforesaid, against the will and consent of her, &c., did take and convey away from the possession of her, the said owner, with an intention the said slave to sell,' dispose of and convert to their own use, contrary to the form, &e. and against the peace, &c.\u201d\nHaney, by consent, was tried alone; and before the jury were impannelled,it was moved for the prisoner, that the solicitor should elect upon which count of the indictment the trial should be had; but his Honor Judge Peakson disallowed the motion. Besides those necessary to prove title in the prosecutrix, &c., the only witness for the prosecution, was one 'Robins, who was an accomplice, and who detailed at great length all the particulars of the seduction of the slave. He stated that the plan for the seduction, was devised by Hardin and himself; that after the slave came into their possession, he, the witness, carried him to South Carolina and \u2018sold him. He was proceeding to state the particulars of the- transaction, when he was asked by the prisoner\u2019s counsel, whether he had seen the prisoner after the plan was matured; he answered that he had not until his return from South Carolina, when he met the prisoner and Hardin, and divided the proceeds of the sale. It was objected for the prisoner, that testimony of intermediate acts was not admissible against him; but the objection was over-ruled. Other witnesses were called on both sides, but their testimony was either to confirm or impeach Robins; and the result of the evidence in the case was, that the guilt of the prisoner depended upon Robins\u2019s credibility.\nHis Honor instructed the jury, \u201c that an accomplice was a competent witness; but that it was not safe to con-viet upon the testimony of an accomplice, unless it was supported in some of its material parts, by the testimony of other witnesses, so as to carry to their minds full and entire conviction of its truth.\u201d The counsel for the prisoner, prayed his Honor to instruct the jury, that they ought not to find the prisoner guilty upon the testimony of Robins, unless his testimony as to the agency of the prisoner in the transaction, was supported by the testimony of other witnesses. This instruction his Honor refused to give, but charged that the law did not make such confirmation indispensable, although it would be more satisfactory ; and that if the evidence of the accomplice, from the manner in which it was given, and from the support which his general narrative received from other testimony, carried to their minds full and entire conviction of its truth, it was sufficient to authorize a verdict against the prisoner, although the narrative was not supported by other evidence to that part of it in which the prisoner was stated to have had a personal agency.\nThe prisoner was acquitted upon the first count, and convicted upon the second; the words of the entry of the verdict being, \u201c who find the defendant guilty of the felony and seduction in manner and form as charged in the second count of the bill of indictment, and not guilty in manner and form as charged in the first count of said bill.\u201d\nA new trial was moved for \u2014 1st. Because the judge refused to instruct the jury to acquit the prisoner, unless the evidence of Robins was corroborated as to the prisoner\u2019s agency in the transaction.\n2nd. Because the judge recited the testimony for the prosecution, and did not recite that for the defence. This motion being over-ruled, a motion in arrest of judgment was made: 1st. Because the indictment did not set forth the offence as described by the statute \u2014 it charging the seduction to be \u201c with an intention to sell, dispose of and convert to their own use\u201d' \u2014 whereas the words of the statute were \u201c with an intention to sell or dispose of to another, or appropriate to his own use.\u201d\n2nd. Because the indictment was double, and repugnant in charging the taking to be \u201c by violence, seduction and other means;\u201d and, also, because the intent charged was to \u201c sell, dispose of and convert to their own use.\u201d\n3rd. Because the slave was not charged to be of any value. This motion being also over-ruled, and judgment of death pronounced, the prisoner appealed.\nNo counsel appeared for the prisoner. \u25a0\nThe Attorney-General, for the state."
  },
  "file_name": "0390-01",
  "first_page_order": 390,
  "last_page_order": 406
}