Cook v. The State Of Ga.

• Decision Date: 30 November 1858
• Citation: 26 Ga. 593
• Parties: Richard L. Cook, plaintiff in error. vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

26 Ga. 593

Richard L. Cook, plaintiff in error. vs. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1858.

Indictment for high misdemeanor, found and tried before Judge Thomas, in Taliaferro Superior Court at August Term, 1858.

The indictment in this case charged Richard L. Cook with "concealing, harboring, hiding and employing in his own service" the slave of another, to the injury of the owner. Upon this indictment he was arraigned and plead "not guilty."

The counsel for Cook then moved to continue on account of the absence of Mary Cook, by whom he expected to prove that she had been living at the house of Cook for from some time before, until some time after the alleged harboring, and that the slave had not been there during the time. And also on account of the absence of Wm. W. Lewis, by whom he expected to prove that he, Cook, owned but one pistol, and that he, Lewis, had that at the time of Cook's arrest, by way of contradicting some of the State's witnesses, who testified, on the committing trial, that he had one at that time. The Court three times requested the counsel to state all his grounds at once. No others were then stated. But after argument upon the motion, and when the Court was about to decide upon it, the defendant moved to be allowed to amend his showing, by filing his affidavit that there was so much excitement in the public mind against him, on account of the recency of the alleged offence, that he could not go safely to trial. The Court refused to consider the affidavit, overruled the motion, and dispatched a bailiff with an order for Mary Cook and William Lewis to appear and testify in the case.

When a jury had been empaneled and the array was put upon the accused, he filed his affidavit as to excitement with the Clerk, and moved for a continuance on that account then. Which the Court refused.

Counsel for Cook then objected to his being tried under the arraignment, because he had not been furnished previously, or at the time, with a copy of the indictment and list of witnesses. The Court overruled the objection, and a copy and list were furnished him. Whereupon he moved to con-tinue on all of the foregoing grounds, which the Court refused.

A jury having been selected and sworn, counsel for the accused moved to take a verdict of not guilty, on the grounds following:

1st. Because the indictment charged no crime.

2d. Because the indictment did not allege that Cook "did not have an apparent well founded claim to the slave, and had not had him in peaceable possession for twelve months previous to the commencement of said harboring."

3d. Because the accused was charged with "concealing, " "harboring, " "hiding" and "employing, " instead of concealing, harboring, hiding or employing.

4th. Because the indictment charged four distinct offenses.

The Court overruled the motion for a verdict. As the witnesses, who gave testimony before the grand jury were successively called to the stand, counsel for the accused moved the Court to exclude them from testifying, because he had not been furnished with a list of them before arraignment, which the Court refused.

After the State had closed its testimony, counsel for the accused called for the witnesses, Mary Cook and Wm. Lewis, and asked time to consult with them. Mary Cook appeared, and counsel conferred with her at length. But the officer who had been sent with the order, made a return that he had "served it on Lewis by leaving a copy at his most notorious place of abode, he being away." Counsel for the accused then moved to suspend the trial until Lewis should be produced. The Solicitor-General offered here, as he had when the first motion for a continuance was made, to "admit and not contest" what it was proposed to prove by Lewis. The Court refused the motion to suspend, and ordered the trial to proceed.

Brief of Evidence.

Benjamin F. Rogers, sworn, says: He was the owner of Austin for eighteen months, who had been run away three months; was caught 27th July, sold him 28th July after the arrest of defendant on this warrant. Witness lived in Warren county eight or nine miles from Crawfordville. First saw negro after he ran away in Crawfordville in custody of Mr. Humphrey, and does not recollect who else. Mr. Ellington was one, he thinks. Company had separated, and he does not remember who delivered him. Mr. Ellington claimed reward; not paid yet. Conversed with Mr. Nelson about July 21st and 22d about this runaway. Negro worth $600 to $700 before he ran away. Negro looked not very ragged nor dirty. On 27th July his clothes were torn by dogs. Did not look like the same negro he was before he ran away. Was worth then, or sold for $500. Looked poor, as if worked hard.

Thomas J. Peck, sworn, says: Went last of July with Sheriff to search Cook's house. Sheriff told Cook he had a search warrant. Cook allowed search. Sheriff, Humphrey, Tilly and witness entered dwelling and found nothing; entered smoke house, found platform and blanket; seemed for some one to lie on. Searched gin house and stables—found nothing, and returned to horses about sixty yards from stable and one hundred from the house. Circled with the dogs round the house. Dogs started the negro; negro ran rather towards the house, and was caught about 250 yards from the house. While circling saw Cook ploughing in the field. After catching negro, Sheriff arrested Cook. Negro was the same claimed and sold by Mr. Rogers; was taken to Crawfordville. Cook was in the house when the company came up. Owns no negro, nor hired any this year, as far as witness knows. Search made before breakfast. Cook went with party searching. After which party went off with dogs, and started trail on Cook's land. Negro was caught on Mr. Jones's land. Cook had pistol when in thesmoke house door. Does not remember to have seen pistol when he was arrested; thinks Cook then had no coat or vest on.

John K. Nelson, sworn says: He is acquainted with negro Austin; has known him twenty odd years. Last saw him in town, and last before that at Mr. Cook's on the 24th July, this year, with him, Cook, while the negro was run away. Saw negro pick up something which looked like boards and walk along with Cook; the negro was talking. Witness was 150 to 200 yards off. Knows negro well; is certain of his identity, as well as of Cook's. Sun was one-half hour high. Had been waiting three-fourths or one hour before seeing Austin. Was sitting down to conceal himself—did not wish to be seen. Negro had no coat on. Pants and shirt of cotton. Saw a woman, but does not know who she was. Saw children. Wears spectacles for short distances, but raises them for long distances.

George C. Fraser, sworn, says: He knows Austin; saw the negro first while Cook had him hired. Cook had him for a month or two. Negro hired his own time while Cook had him. This year he saw him, he supposed, in Mr. Cook's field. Mr. Cook had no one hired this year as witness knows. Negro corresponds in size and general appearance with Austin. This was two or three weeks before the first search warrant. Witness was off some 200 yards; it was about 10 or 11 o'clock. Believes, from general appearance, it was Austin. The field not near the public road. Negro was chopping. Does not remember that the corn, which was half thigh high, was grassy. Negro did not turn to look at him. Did not see him there before this year. Did not watch before.

Mary Cook, sworn, says: She lives with her brother, the prisoner. He has wife and five children. Was at home on 24th; was there on the morning of 24th, half hour by sun; generally fed the chickens. Saw no negro. Brother keeps a little meal, &c, in smoke house. There was a plank insmoke house across the corner, and blanket on it; placed there for the baby to play on. Children placed planks there to play on; baby sent into smoke house sometimes to be out of the way while work is going on. Baby about eight months old. No one slept in smoke house. Did not see Austin.

J. N. T. Jones. Resides one-half mile from Cook's field 300 yards from Cook's house. Never saw negro at Cook's. Don't remember the amount of Cook's cotton crop. Did not often see Cook at Powelton; not there much himself.

Lewis Tyres, sworn, says: Cook has been to Powelton very often this year.

Jas. T. Andrews, sworn, says: He lives in Powelton. Cook seen by him several times a week. Cook generally left in the evening. Cook usually came in his working clothes.

Rhodes, Sheriff, sworn, says: He was present at search for boy at Cook's. Saw the boards and blanket in smoke house; boards two to two and a half feet high, and four or five long. Was examining for signs. Didn't notice if boards were nailed. Cook made no resistance to search. Saw him at gin-house and next in field, about 9 o'clock; negro was started. Cook made no attempt to escape.

After the testimony had closed, and argument had, and the jury had been charged by the Court, they retired and brought in the following verdict: "We, the jury, find the defendant guilty of concealing and employing." The Solicitor-General moved to amend the verdict by adding "the negro to the injury of the owner." Counsel for the accused objected. The Court enquired of the jury if this was what they intended to find. And upon receiving an affirmative answer, allowed the amendment. Counsel for the accused objected to the reception of the verdict. The Court overruled the objection, and ordered the verdict to be entered on the minutes.

Counsel for the accused moved for a new trial on theground that the Court erred in all of the aforesaid rulings, orders and refusals.

Because the accused was not furnished previous to, nor at the time of arraignment, with a copy of the indictment and list of witnesses who gave the testimony before the grand jury.

Because the verdict does not find the accused guilty of any crime.

Because the verdict does not cover all the issues made.

Because the verdict was contrary to law, and...