State v. Slave

• Decision Date: 30 June 1838
• Citation: 20 N.C. 95
• Court: North Carolina Supreme Court
• Parties: THE STATE v. JESSE, A SLAVE.

20 N.C. 95

THE STATE

v.JESSE, A SLAVE.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1838

Former Acquittal—Evidence.

1. An acquittal upon an indictment lor a rape against a person of color cannot be pleaded in bar to an indictment against the prisoner for an assault with intent to commit the rape upon a white female, under the act of 1823 (1 Rev. Stat., ch. 111, sec. 78), because both offenses are felonies, created by different statutes, and the latter requires different allegations in the indictment and different proof on the trial from the former, and because an indictment for the commission of a felonious act is not supported by proof of the intent to do that act, and an indictment lor the latter, if a felony, may be sustained alter an acquittal upon an indictment lor the former.

2. Where a person of color has been acquitted upon an indictment for a rape, and is subsequently indicted for an assault with intent to commit the rape upon a white female, under the act of 1823, he cannot object, upon the trial, that the evidence offered proves an actual rape, because the jury may convict for the specific charge contained in the indictment, if the evidence proves that charge, notwithstanding it may also prove the other charge for which the prisoner has been formerly tried and acquitted.

3. A formal acquittal, if it cannot be pleaded in bar to a subsequent indictment cannot be taken an advantage of as an estoppel.

4. It is not sufficient to make a judgment in one indictment a bar to another that evidence of the facts alleged in the first would also be evidence of the facts alleged in the latter. As an acquittal upon an indictment for the burglary and stealing is not a bar to a second indictment for the burglary with intent to steal.

5. An acquittal upon a former indictment can be no bar to a second unless the former were such as the prisoner might have been convicted upon by proof of the facts contained in the second.

6. An intent to commit a felonious act, where the intent is only a misdemeanor, merges in the felony, if the act be committed; but not if the intent alone is a felony of the same grade with the act itself; and the prisoner may be convicted of either upon any competent testimony that satisfies the jury of his guilt of the particular offense charged.

7. In burglary the intent to steal is mo3t satisfactorily proved by an actual stealing.

The prisoner was arraigned on the following indictment in the Superior Court of Craven.

"The jurors for the State upon their oath present, that Jesse, a slave, being a person of color, late of the county of Craven, the property of Sarah Green, of the said county, on, etc., with force and arms at, etc., in and upon B. W. in the peace of God and the State, then and there being, did violently and feloniously make an assault, and her the said B. W. then and there did beat, wound and illtreat, with intent unlawfully, forcibly and feloniously to commit a rape upon the body of her, the said B. W., being a white female, and with intent her the said B. W. violently, forcibly and against her will then and there feloniously to ravish and carnally know; and other wrongs to the said B. W. then and there did, to the great damage of the said B. W., contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."

To this indictment the prisoner pleaded "autre fois acquit," and also pleaded over to the felony "not guilty," and issue was joined upon both pleas.

The first plea set out the record of a former indictment against the prisoner in the same court, containing two counts. The first charged the prisoner with a felonious assault on B. W. and feloniously

committing a rape. It described him as a slave, the property of Sarah Green, but it did not otherwise describe him as a "person of color," nor did it describe B. W. as a white female. The second count was for an assault with intent to commit a rape on B. W., and in all respects like the present indictment except that it omitted the term feloniously as applied to the assault therein charged. On that indictment the prisoner was tried, and by the jury found not guilty of the felony and rape charged on the first count of the indictment, and guilty of the felony and assault, with intent to commit a rape, charged on the second count. Whereupon there was judgment of the court that the prisoner should be discharged and go acquitted of the premises in the said first count specified, and the judgment upon the verdict upon the said second count was arrested. (See ante, 2 vol., page 297.)

Upon the trial of the issues joined on the second indictment, at Beaufort, on the last circuit before his Honor, Judge Saunders, the evidence raised a doubt whether a rape had not, in fact, been committed; and the counsel for prisoner insisted thereupon that he wasentitled to a verdict and prayed the court so to instruct the jury. The court refused to give such instruction, but charged them that if the prisoner had, in fact, committed a rape, yet he was not on that ground, entitled to a verdict; to all which the prisoner excepted. The jury found the prisoner guilty, and that he had not been before acquitted of the premises in this indictment specified and charged on him. Sentence of death being pronounced on the verdict, the prisoner appealed to the Supreme Court.

RUFFIN, C. J., after stating the case as above, proceeded as follows: The instruction prayed on behalf of the prisoner does not specify on which of the two issues he demanded a verdict in his favor. From the nature of the instruction and referring to the evidence to which it relates, it would seem to be necessarily confined to the plea to the felony; if so, the question which has been debated upon the effect of the former indictment and the proceedings on it, as mentioned in the other plea, does not arise upon this record. But as all the matters were treated at the bar as open, and were fully argued on both sides, the court is not inclined to preclude the prisoner from any advantage he may possibly be entitled to, and therefore has considered the whole case. It has been insisted that the judgment must be reversed for several distinct reasons.

The first is that the record set forth in the plea of autrefois acquit, sustains that plea, the identity of the persons and transactions being assumed, and that is not disputed here.

In the first indictment the prisoner was charged in one count with a felonious assault and committing a rape, of which he was acquitted; and in the second count with an assault with intent to commit a rape, of which he was found guilty; but no judgment was pronounced thereon, because, for the want of the word felonice, the offense was amisdemeanor, and of that the Superior Court had not jurisdiction.

The prisoner's counsel rests his case on the verdict and judgment given on the first count and claims to confine our attention to that part of the former proceedings, denying an operation, for any purpose, to the other part of the proceedings.

If indeed it were true that upon an indictment for a rape the jury might find the accused not guilty of the rape, but guilty of an assault with intent to commit a rape, and consequently that a general acquittal upon such an indictment would be a bar to a subsequent prosecution for, specifically, an assault with that intent, the court would yet not be prepared in this case to admit without much hesitancy, the conclusion necessary to the prisoner. The reason would not seem applicable to an indictment with two counts, in which the two grades of offense and the facts necessary to constitute them are separately charged as distinct crimes, and the verdict expressly discriminates between them, finding the prisoner guilty of the assault as charged in one count, but not of the rape as charged in the other. It would seem to be the duty of the court to make the verdict consistent with itself, if possible. Perhaps it mught therefore, if necessary for that purpose, be deemed a conviction of the assault of which the prisoner could be convicted on the first count, notwithstanding the general terms of finding the prisoner not guilty of the premises charged on that count, because the verdict expressly and affirmatively finds the party guilty of an assault. But if that would not be justifiable, it is plain that the verdict cannot be perverted into an acquittal of the assault, contrary to its explicit purport. If not a conviction to that extent in both counts it would, in itself, be repugnant—since upon the one count it affirms the prisoner to be guilty of an assault, of which same assault it at the same time affirms him to be not guilty upon the other. In such a case there could not be a judgment of acquittal, but only such proceedings as ensue in other cases of insensible verdicts.

The position of the counsel upon this point is, therefore, in opposition to the judgment of this court upon the very case of this prisoner, when it was before us on the first indictment. (See 19 N. C., 297.)

The judgment of acquittal on the first count was then affirmed, and the judgment was arrested on the second count because that was regarded as charging a distinct offense, which was not charged in the former, or of which the prisoner could not be convicted on that

count. But as the validity of the verdict in this respect was not then discussed, nor even adverted to at the bar, nor by ourselves, the court will now proceed to inquire whether the prisoner was before acquitted of the crime, of which the present indictment accuses him. This will be done independently of the authority of the adjudication of ourselves, just alluded to, and also with reference only to that part of the first verdict which acquitted the prisoner on the first count of that indictment, and without noticing the fact that the indictment contains more than that count.

The affirmative is asserted for the prisoner, because it is said that he might have been convicted...