Grady v. The State Of Ga.

• Citation: 11 Ga. 253
• Decision Date: 28 February 1852
• Docket Number: No. 35.,35.
• Parties: Thomas Grady, plaintiff in error. vs. The, State of Georgia, defendant in error.
• Court: Supreme Court of Georgia

11 Ga. 253

Thomas Grady, plaintiff in error. vs. The, State of Georgia, defendant in error.

No. 35.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1852.

Indictment, in Troup Superior Court. Tried before Judge Hill, November adjourned Term, 1851.

At the November adjourned Term, 1851, of Troup Superior Court, Thomas Grady was placed upon trial, on an indictment for "an attempt to procure a slave to commit a crime."

The facts, as disclosed by the evidence, were these: On the night of the 12th of July, 1851, in the County of Troup, the defendant was heard counselling and advising a negro slave, named James, the property of Robert 0. Moreland, of Meriwether County, to induce and carry away to some free State, two negro slaves, to wit: " Fed and Adam, " the property of said Moreland.

On the trial, counsel for defendant moved to quash the indictment, on the ground that the offence charged in the bill of indictment was not a crime, under the Statute.

Which motion the Court overruled, and counsel for defendant excepted.

In the progress of the trial, Robert 0. Moreland was introduced on the part of the State, and testified to the sayings of the negro boy " Jim."

To which no objection was made by counsel for defendant, at the time, but the same was taken as a ground in this bill of exceptions, and the admission of the evidence assigned as error.

The evidence was closed, and while counsel for the defendant was commenting upon the same, before the Jury, the Court interrupted him and required him, " to read on further, and he would see that the witness did not say what he was attempting to make it appear that the witness did say, from that portion of the testimony counsel had read, " which fact counsel, on reading through the testimony, admitted, but excepted to the conduct of the Court in interrupting him.

Counsel for defendant requested the Court to charge the Jury, " that if the act to be performed by the boy Jim, was to be performed in Meriwether or any other County outside of Troup County, that they were bound to acquit the prisoner on the indictment."

Which charge the Court refused to give, but did charge the Jury " that the 'venue' was properly laid in Troup County."

To which refusal and charge, counsel for defendant excepted.

The Jury found the defendant guilty, and the Court sentenced him to four years' imprisonment in the penitentiary, without calling on the defendant, (he and his counsel both being present) to know "if he had any thing to say why sentence of the law should not be pronounced upon him."

And counsel for defendant excepted, and upon these several exceptions assigned error.

John L. Stephens, for plaintiff in error.

Sol. General, for defendant in error.

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

The first error complained of is, the refusal by the Court, to dismiss the indictment, on the ground that it charged no offence.

The Act of 1850 declares, " that if any free white person shall attempt to procure a slave to commit a crime, by counsel, persuasion, bribery, force or other means, he shall be presented for such attempt, and if found guilty, shall incur the same punishment as if such free white person had attempted to commit the same crime, which he attempted to procure the slave to commit." New Digest, 780, 781.

The offence charged in the indictment is, " that Thomas Grady, the defendant, did attempt, by counsel and persuasion, to procure a negro man slave, by the name of Jim, the property of Robert O. Moreland, feloniously to take, steal and carry away, two negroes. Fed and Adam, the property of said Moreland, " &c. And inasmuch as it is no crime, for one slave to steal another, it is insisted, that to procure it to be done, by a white man, is no offence, under the Statute. But we apprehend, that the intention of the Act, is not to make punishable attempts to perpetrate acts, which if consummated, would be a crime in a slave, but a crime in a freeman.

The design of the Legislature in the passage of this law, and the previous Act of 1838, of which it is amendatory, was to make the white man responsible directly, for crimes committed or attempted, through the agency of negroes, and to substitute the principal in the place of the subaltern. The proper inquiry therefore is, not whether, if the attempt had succeeded, it would have constituted an offence by the slave, but whether it would have been an offence, in the free white person, it having been done by a subordinate, through his counsel and procurement.

The very language of the law, is a key to unlock its meaning. Its speaks of an attempt to procure a slave to commit a crime; but if the stealing of negroes, is not a crime by a slave, but is by a white man, then the Statute, ex vi termini, refers to such acts only as are by law, criminal in white men.

Moreover, the construction contended for, would present this striking anomaly. An attempt to commit a rape by a slave on a free white female, is punished with death. New Digest, 987.

The same offence by a free white man, is punished by imprisonment at labor in the penitentiary, for a term not less than one year, nor longer than five years. New Digest, 789. And yet the Act under consideration provides, that if the accused be found guilty, he shall incur the same punishment as if the...