Jones v. The State Of Ga.

• Decision Date: 31 March 1846
• Docket Number: No. 90.,90.
• Parties: John G. Jones, plaintiff in error. vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

1 Ga. 610

John G. Jones, plaintiff in error. vs. The State of Georgia, defendant in error.

No. 90.

Supreme Court of the State of Georgia

MARCH TERM, 1846.

This was an indictment, for the larceny of a slave, found against John G. Jones, the plaintiff in error, Allen Jones, William Adams, and Wil-eon Chambers, tried before Judge Meriwether, in the Superior Court of the county of Wilkinson, at October term, 1846.

When the cause was called for trial, the counsel for the prisoners announced that they were ready for trial, and that they would sever on the trial. The solocitor-general responded, that he was ready in behalf of the State. The prisoners' counsel then inquired which the State designed to try first? to which the solocitor-general replied, that he would first put John G. Jones, the plaintiff in error, upon his trial. Whereupon the counsel for the prisoners then moved the court that Allen Jones be first put upon his trial, and stated a reason therefor, that he was a material witness in behalf of the defence, and they desired that he should be first tried, in order that his testimony might be used to support the defence. Which motion was overruled by the court.

Whereupon the prisoner, John G. Jones, was put upon his trial; and the jurors being called, a full panel appeared, Dixon Rogers, the first juror called, was sworn on his more dire, and the questions prescribed by the act of 1843, specifying the oath to be administered to jurors in criminal cases, were propounded to him, both of which he answered in the negative. The counsel for the prisoner then moved the court, that the juror should be asked whether he had formed and expressed any opinion as to the guilt or innocence of the prisoner at bar; which was overruled by the court, and the juror was challenged peremptorily by the prisoner. Afterwards, another juror being called, and sworn on his viore dire, and the questions prescribed by the act of 1843 being propounded by the solicitor-general, and the juror answering both in the negative, he was peremptorily challenged by the solicitor-general, for the State, to which peremptory challenge the prisoner's counsel objected; which was overruled by the court, and the peremptory challenge allowed. To which the counsel for the prisoner excepted.

A jury of twelve having been empanneled, and sworn, to try the cause, testimony was adduced in behalf of the State, which proved that the slave. Mariah, the subject of the alleged larceny, was the property of Matthew Owens, the prosecutor, who resided in Florida, and who had purchased her in the said county of Wilkinson, and left her in charge of one John F. Paul, to remain several months, and until said Paul should himself remove to Florida. William Hall proved, that the negro was missing, but did not know how she went off; searched for her, and found her in Bulloch county. James Oliver proved the negro in the possession of the prisoner, in Bulloch county, and that he offered to sell her to Garrett Williams for $250 00. While in Bulloch with the negro, the prisoner stated, that he had purchased her from said Paul, against whom there was an execution, which Paul had promised to pay out of the purchase-money paid him by the prisoner, but which he did not pay, but ran away, and left the execution unsatisfied; and that he, the prisoner, had carried the negro to Bulloch, where he did not think she would be interrupted by the execution. The prisoner also stated, that the evening before he left home he was in Irwinton, and had a difficulty with an individual; had thrown a brickbat at him, hit him, and supposed that he had killed him; and that he left, to get out of the scrape, and had taken the negro with him, and bad staid three weeks at his uncle's, in Emanuel county. That his brother had come down, and informed himthat the man with whom he had the difficulty was delirious, and that three of his negroes had been taken for the damages, and that he was afraid to return before the scrape was made Up.

There was no evidence on the trial showing the truth of these state ments. On the contrary, one witness testified that he did not know that Paul had ever been sued.

The testimony, on the part of the State, having closed, the prisoner proved that he purchased said negro from the said Paul; and the bill of sale from Paul to prisoner was introduced, and read to the jury in evidence. Some part, or all. of the purchase-money was proven to have been paid Paul by the prisoner.

The evidence on both sides having closed, the court below charged the jury, that "if the prisoner had notice of the title of Owens at the time of his purchase from Paul, the jury might infer his guilt: but if he had no notice, he was innocent." The jury rendered a verdict, against the prisoner, of "Guilty."

Whereupon the counsel for the prisoner moved the court for a new trial, upon the following grounds:

1st. That the jury found contrary to law.

2d. That the jury found contrary to the evidence.

3d. That the jury found contrary to the aforesaid charge of the court.

4th. That the court erred in not acceding to the motion of prisoner's counsel to direct Allen Jones, a party in the same indictment, there having been a severance on the trial, to be tried first, and before the defendant, John G. Jones: it being stated by counsel in their places that said Allen Jones was a material witness for the defendant, John G. Jones, and that the notice so made was bona fide, and for the purposes stated.

The motion for a new trial was refused by the court below; and the counsel for the prisoner excepted.

Iverson L. Harris and Kenan and Rockwell, for the plaintiffs in error.

John M. Ashurst, Solicitor-General, for the State.

Argument of Mr. Harris, fur the prisoner.

The motion in this Case below, and denied by the presiding judge was made before any step had been taken in the trial. No jury, or any part of it selected: no opening by the solie tor-geri"ral. The annunciation of the solicitor-general, in reply to a question put by the counsel of defendant below, that he would try John G. Jones first, don't detract from the force of the legal rights of defendant, as well recognized by numerous cases, the tithe of an atom.

Those rights are to have his co-accomplice rendered a competent witness, before he is himself put upon trial, if he should desire to have his testimony.

In this ease, that testimony was desired; and with a view to its obtainment and in conformity with the uniform practice in the English courts, the motion was made.—See Rowland's Cas, 21 English Com. Law, 471; edition of 1836 of Roscoe Cr. Ev. p. 118.

That the motion should have been allowed, is evident from the many adjudications that an accomplice included in an indictment cannot be a competent witness for another joined with him in the same indictment, though they have severed as the statute allows.

The case decided by C. J. Kent in 10 John. p. 94, in the case of The People vs. Bill; Lafone\'s case, 6 Esp. 155; U. S. vs. Henry "Wash. 0. C. Repts. 428; Rex vs. Fetcher, Strange, 633.

It will be urged by the solicitor-general, as he informs me, that it is the right of a person on trial, to call his co-accomplice—and who is included in the same in dictment—as a witness; and in support of his competency, he relies on the statement of a principle of evidence by Mr. Starkie, p. 11 of 2d vol. of 2d edition, in the following words; "An accomplice is a competent witness, although indicted with another, it he be not put on his trial."

'the authorities cited in support of it are Bilmore's case, in 1 Hale's Pleas of the Crown, 3o5 repeated in Roscoe Cr. Ev. 117, 118; and in 2 Russ. Crim. L., 597.

The principle sited goes beyond the case.

I am not here to defend the grounds upon which the rule of incompetency has long been placed—Sto super vias antiquas.

Allen Jones was an incompetent witness for John G-. Jones, until he had himself been first tried, because he was a party to the record. It is, in a tribunal bound to pronounce the law as it is, sufficient to say sic ita lex scripsit.

It is worthy of remark, that in the court below, the solicitor-general denied the very principle he is now affirming, in resisting the motion there made; and what is equally worthy of note is, that the judge did not place his denial of the motion upon this principle, but on the isolated position that the State had made its election previous to the motion,

The judge below erred in not granting a new trial to plaintiff in error, upon the two grounds, that they found contrary to law and against and without evidence.

John G Jones held under a bill of sale from Paul, to whom he paid, as the proof shows, a fair and valuable consideration for the negro girl. The negro had been in Paul's possession from May until in August. Jones had a right to presume ownership in Paul of the negro, as possession of personal property is prima facie evidence of title.

There is an entire absence of all proof in the case of any knowledge in Jones of any claim of property by Owens in the slave. There are no facts in the case to authorize the inference of knowledge by the jury.

Knowledge is an essential ingredient to the crime of larceny in Jones. No force—no surprise, or trick, or device, or fraudulent expedient used in obtaining the possession of the negro.

The negro was legally in the poseession of Paul, and was sold and delivered by him to Jones. How, then, could it be a larceny in Jones as to Owens; and there was none as to Paul.

A trespass is involved in every larceny. Unless there be a trespass in taking the slave by Jones, there cannot be a larceny in carrying her away to Bullock county, and there offering her for sale.—See 2 East Pleas of Crown, 556; 2 Rus-sel Cr. Law, 95; Roscoe Cred. Ev. p. 469.

If the original taking is not animo furandi, a subsequent conversion to the parties' own use will not constitute larceny.—Leigh's case, 2 East P. 0. 694; 1 Leach, 411; People vs. Schuyler, 5 Cowen, 572; Roscoe Cr. Ev. p....