Berry v. The State Of Ga.

• Decision Date: 31 October 1851
• Docket Number: No. 75.,75.
• Citation: 10 Ga. 511
• Parties: James Berry, plaintiff in error. vs. The State of Georgia, defendant.
• Court: Georgia Supreme Court

10 Ga. 511

James Berry, plaintiff in error. vs. The State of Georgia, defendant.

No. 75.

Supreme Court of the State of Georgia

OCTOBER TERM, 1851.

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Indictment, in Floyd Superior Court. Tried before Judge John H. Lumpkin, July Term, 1851.

This was an indictment for larceny from the house, which was charged in the bill of indictment, as follows: "For that the said James Berry on the tenth day of April, eighteen hundred and fifty, in the County aforesaid, with force and arms, the dwelling house of one William Montgomery, there situate, unlawfully, wilfully, feloniously and maliciously did enter in the night-time and having so entered, seven thousand dollars, to wit, two thousand dollars in gold and silver coin of the value of two thousand dollars, and five thousand dollars in bank bills of thevalue of five thousand dollars, and three thousand dollars in promissory notes of the value of three thousand dollars, of the property, goods and chattels of the said William Montgomery, in the said dwelling house, did then and there, being found then and there, feloniously, unlawfully, wilfully, maliciously, and privately did take and carry away, with intent to steal the same, contrary to the laws of the said State, the good order, peace and dignity thereof."

On the trial of this indictment, the proof went to show that the felony had been committed by two negroes named Phil and Tom, and the State sought to convict the defendant, by showing that he procured the negroes to commit it, and got the money, or part of it.

The following is such of the testimony as was admitted by the Court, after objection by the defendant.

It was proved that the negro Phil was whipped for the purpose of forcing him to disclose who were concerned with him in the larceny; that defendant and several others were present and all agreed that the negro should tell all he knew, that the negro then accused defendant of being concerned in it, upon which defendant appeared enraged and approached the negro with a knife in his hand, threatening to kill him, but was prevented from getting to him; that afterwards defendant said to one of the witnesses, that he knew from the negro's countenance, that he was going to accuse him.

John Tate testified that he had several conversations with defendant about the stolen money; which conversations witness related, and added that " he thought from Berry's remarks, that he knew where the money was."

Pending the trial, the Court adjourned for the night, and when about to adjourn, the presiding Judge inquired what should be done with the Jury? To which defendant's counsel replied that they were willing that the Jury should disperse, and the State also consenting, the Jury were allowed to disperse and go where they pleased until the Court convened.

The Jury returned a verdict of guilty.

Whereupon the defendant moved an arrest of judgment, on the following grounds, to wit:

1st. Because the prisoner is indicted as principal, without stating in what degree; whether in the first or second degree, and is therefore too general and not in the words of the Penal Code.

2d. Because the indictment charges that the prisoner entered the dwelling house in the night-time, without stating with what intent he entered said house.

3d. Because the indictment does not state that the prisoner, after having entered said dwelling house did steal anything therefrom.

4th. Because the indictment charges no facts that would make prisoner principal in the second degree.

5th. Because the bill of indictment contains no sufficient description of the property stolen.

All of which grounds were overruled by the Court, and the motion in arrest of judgment refused.

Whereupon defendant moved for a new trial, on the following grounds, to wit:

1st. Because the Court erred in permitting evidence to go to the Jury to prove that the negro Phil, in a confession or statement drawn from him by whipping, accused or charged the prisoner with receiving the stolen money in order to apply or explain the reply and conduct of the prisoner.

2d. Because the Court erred in permitting the counsel for the State to suppose in his argument to the Jury in conclusion, that the negro Tom, had also, when removed out of the prisoner's sight, made the same statement that Phil had made, and state that supposition to the Jury, without stopping the counsel or correcting any improper impression made on the minds of the Jury by such supposition, by calling the especial attention of the Jury to such supposition in the charge of the Court to the Jury.

3d. Because the Jury found contrary to law and the charge of the Court.

4th. Because the Jury found a verdict contrary to evidence and without evidence. 5th. Because the Jury were allowed to disperse after they had heard the evidence, and remain so dispersed, without a bailiff, for several hours and to mix and mingle with the crowd, although it was done at the suggestion of defendant\'s counsel upon the asking of the question by the Court what should be done with the Jury.

6th. Because there was no sufficient proof as to the identity of the property stolen.

7th. Because there was no proof that the property was stolen from a dwelling house.

8th. Because proof that a trunk was taken and carried away, in which there was money and divers other things, does not sustain an allegation of taking and carrying away money.

9th. On the ground of newly discovered evidence contained in affidavits herewith presented.

With this last ground, was filed an affidavit of defendant, stating that he had discovered new testimony in his behalf, in this, that Samuel Stewart had been employed by the prosecutor to visit defendant, and by pretending friendship and offering him assistance, to endeavor to extract from him something that would lead to a discovery of his guilt, and that Stewart had also sent the negro Phil to talk with him, and had overheard the conversation, and that Stewart would testify that he had not heard nor obtained anything going to criminate defendant.

There was also filed an affidavit of John D. Dickinson, stating that he had heard the above facts from Stewart, and that Stewart was now sick with fever.

All these grounds were overruled by the Court, and a new trial refused.

To all which rulings of the Court defendant excepts.

Alexander & John W. H. Underwood, for plaintiff in error.

Aiken & Peeples, representing Word, Solicitor General, for defendant.

By the Court.—Lumpkin, J. delivering the opinion.

This is an indictment which comes before us upon a writ of error from a judgment rendered in the Superior Court of Floyd County. On the plea of not guilty, the defendant, James Berry, was convicted by a verdict of the Jury. The charge was for stealing from the dwelling house of William Montgomery, two thousand dollars in gold and silver coin, five thousand dollars in bank bills, and three thousand dollars in promissory notes, all of the value often thousand dollars, the same being the property of one William Montgomery.

Counsel for the defendant moved, in arrest of judgment, and assigned as reasons,

First. Because the prisoner is indicted as principal, without stating in what degree.

The offence charged in the indictment constitutes the defendant a principal in the first degree. He is accused of being the actor or absolute perpetrator of the crime; if it had been intended to criminate him as principal in the second degree, the indictment would have charged, not that he stole the money and chattels, but that he was present, aiding and abetting the fact to be done; the indictment therefore is not only sufficiently technichal and correct, but it is in the very language and terms of the Code.

Secondly. Because the indictment charges that the prisoner entered the dwelling in the night time, without stating with what intent he entered the same.

Nor is it necessary that it should, where, as in this case, the stealing was consummated. Larceny from the house is defined to be, either the breaking or entering any house with an intent to steal, or after breaking or entering said house, stealing therefrom any money or thing of value. (New Digest, 794.) One may be guilty of this crime then, where the original entry was not felonious or with an intent to steal. Could the Jury who tried the case fail to comprehend readily the nature of the offence intended to be charged? If so, the indictment is sufficient. Studstill vs. The State, 7 Geo. R. 2.

Thirdly. Because the indictment does not state that the prisoner, after having entered said dwelling house, did steal anything therefrom.

It charges the prisoner after having feloniously entered the dwelling house of the prosecutor by night, with having " feloniously and privately taken and carried away" the money and notes specified in the indictment, "with intent to steal the same. The allegation could not have been more full and explicit.

Fourthly. Because the indictment charges no facts which make the prisoner principal in the second degree.

Nor is it attempted to convict him in that capacity. If it appears that an offence not capital, committed by a slave, has been done by the counsel, persuasion, or procurement or other means of a free white person, he or she shall be prosecuted for the offence, and if found guilty shall incur the same punishment as if he or she had actually committed the crime or misdemeanor with which the slave is charged. New Digest, 780.

If the facts which transpired in this case had occurred between the defendant and a free white citizen, Berry would have been guilty as principal in the second degree only, and the indictment should have been found accordingly; but the design here is to charge Berry himself as guilty of the offence, because perpetrated by a negro through his procurement. The law institutes him in the place of the slave, and treats him as the actor or principal in the first degree. The same division of the Penal Code contains an analogous provision as to...