Stephen v. The State Of Ga.

• Decision Date: 28 February 1852
• Docket Number: No. 32.,32.
• Citation: 11 Ga. 225
• Parties: Stephen, (a slave,) plaintiff in error. vs. The State of Georgia, defendant.
• Court: Georgia Supreme Court

11 Ga. 225

Stephen, (a slave,) plaintiff in error. vs. The State of Georgia, defendant.

No. 32.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1852.

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Indictment, in Houston Superior Court. Tried before Judge Powers, October adjourned Term, 1851.

At the October adjourned Term, of Houston Superior Court, held in December, 1851, the Grand Jury found true the following bill of indictment:

" The Grand Jurors, &c. in the name and behalf of the citizens of Georgia, charge and accuse Stephen, a man slave, the property of Nunn Miller, of the County and State aforesaid, with the offence of rape; for that the said Stephen, as aforesaid, in the County aforesaid, on the 31st day of October, 1851, with force and arms, in and upon one Mary Daniel, the said Mary Daniel being then and there, a free white female in the peace of God, and said State, then and there being, violently and feloniously did make an attempt, and her, the said Mary Daniel, the said Mary Daniel being then and there a free white female, then and there forcibly and against her will, feloniously did ravish and carnally did know, contrary to the laws of said State, " &c. The indictment also contained a count for "an attempt to commit a rape."

When placed upon his trial, counsel for defendant challenged the array of Jurors, upon the ground that the Jury chosen, summoned and impannelled to try said cause, were not chosen, summoned and impannelled, under any law authorizing the drawing, summoning and impannelling of Jurors, for the trial of a slave.

The Court refused to sustain the challenge, and counsel for defendant excepted.

Counsel for defendant moved the Court to compel the Solicitor General, to elect upon which count in the indictment he would go to trial, before the same was read to the Jury. Which The Court declined to do, and counsel for defendant excepted.

The Solicitor General swore the Jury to try the issue formed upon this bill of indictment, between the State of Georgia and Stephen, a negro man slave, &c. who is charged with the offence of rape and of an attempt to commit a rape, &c.

To which counsel for defendant objected, on the ground that they were sworn to try two issues. The Court overruled the objection, and counsel for defendant excepted.

The State introduced Mrs. Mourning Daniel, the mother of Mary Daniel, who testified that immediately after the commission of the act by the defendant, Mary Daniel told her that it was Stephen who injured her.

To which evidence, counsel for defendant objected.

The Court overruled the objection, and counsel for defendant excepted.

John W. Johnson, was introduced as a witness on the part of the State, who testified as to certain admissions, (in substance, that he was guilty of the crime) made by the defendant, when in custody of the Constable.

Counsel for defendant objected to the evidence.

The Court overruled the objection, and counsel for defendant excepted.

The Court, among other things, charged the Jury, " that though the prisoner's confessions were to be received with great caution, yet if they should find that they were corroborated by any part of the evidence testified to by other witnesses, they would amount to almost positive proof, and they might look into the testimony and see if his confessions were so corroborated. For instance, if they should find his confessions (made to Johnson) in regard to having sent for Mary Daniel, (who at the time was in an adjoining field) to bring him a pin, and making out he had a splinter in his finger, agreed with a similar statement made by her to her mother, it might amount to confirmation of his confessions. The Court, however, charged the Jury, that they were judges both of the law and the facts, and that they were not to be governed by any opinion of the Court, in criminal cases, if it differed from their own opinion of the law and facts, &c.

To which counsel for defendant excepted.

The Jury returned the following verdict: " We the Jury find the prisoner guilty of an attempt to commit a rape."

Whereupon, counsel moved an arrest of judgment.

Which motion was overruled by the Court.

Counsel for defendant then moved the Court for a new trial, upon several grounds, predicated upon the various exceptions taken in the progress of the trial, and also upon the form of verdict rendered by the Jury.

The Court overruled the motion for a new trial, and counsel for defendant excepted.

Hall and Giles, for plaintiffs in error.

Sol. General DeGraffenreid, for defendant in error.

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

The prisoner was indicted in the Circuit Court of Houston County, for a rape on the body of Mary Daniel. On the trial, the Jury found him guilty; and this application is to reverse the judgment of the Court.

I shall endeavor, as briefly and dispassionately as I can, to investigate the numerous points made by the record. The crime, from the very nature of it, is calculated to excite indignation in every heart; and when perpetrated by a slave on a free white female of immature mind and body, that indignation becomes greater, and is more difficult to repress. The very helplessness of the accused, however, like infancy and womanhood, appeals to our sympathy. And a controversy between the State of Georgia and a slave is so unequal, as of itself to divest the mind of all warmth and prejudice, and enable it to exercise its judgment in the most temperate manner.

It is insisted, in the first place, that the Jury which tried the cause, were not summoned, chosen or impannelled, under any law of force in this State, for that purpose.

It is conceded, that unless this proceeding was authorized by the Act of February, 1850, providing for the trial by the Superior Courts, of slaves and free persons of color, charged with capital offences, that it cannot be sustained. For the Acts of 1811 and 1816, are virtually, if not directly, repealed by this late Statute, changing the forum for the trial of capital offences, committed by this class of our population. Does this Act authorize this proceeding?

In the absence of any express provision, we should have entertained no doubt whatever, that the mere transfer of jurisdiction, from the Inferior to the Superior Court, carried with it to the latter tribunal all the means necessary and proper for its exercise. But we are not left to speculate upon this subject. For the Act itself declares, that after a bill of indictment is found true, by the Grand Jury, against the slave or free person of color, that " the trial shall proceed to rendition of verdict, in conformitywith the provisions of the Penal Code; and in case of conviction, the Judge shall pass sentence, " &c. New Digest, 1019.

No argument or illustration could make the point plainer. The Juries for the trial of capital offences committed by slaves or free persons of color, are to be summoned, impannelled and sworn, in the same manner as are those for the trial of like crimes committed by free white citizens.

The next complaint is, that the Court overruled the motion made by the counsel of the prisoner, to compel the State's attorney to elect on which count in the indictment he would try the prisoner, before swearing the Jury and charging them with the case.

The indictment, as originally framed and found, contained two counts, one for rape, and the other for an assault with intent to commit a rape.

The prisoner might have availed himself of the objection upon demurrer to the indictment, or on a motion in arrest of judgment. The first application was made before a single Juror had been sworn, and it was repeated before the indictment was read. The Court very properly held, there being no demurrer filed to the form of the indictment, that it was not as yet judicially advised, that there were two counts in the indictment, and could not be, until it was read. And it might have added, that the Solicitor General might, ex mero motu, make the election. The motion was ultimately sustained, and the State elected to try on the first count.

Another view of this question, makes it equally conclusive to my mind against the plaintiff in error. In this case we are clear, that the defendant had no right to force an election. For the two offences charged in the indictment, being of the same nature, requiring the same plea, the same judgment, and the same quantum of punishment, the State might have proceeded to trial on both counts at the same time.

Admitting then, that the Judge committed a mistake in law, in not entertaining the motion at an earlier stage of the trial, still upon an examination of the whole record, finding as we do, that the second count in the indictment should not have beenstricken out at all, we should adjudge for the State, the legal right upon the whole case being with the State. If the second count ought to have been permitted to stand, then it was no error in the Court to refuse to strike it out at any stage of the trial.

The party guilty of the first faulty pleading cannot demand a repleader. 1 Chitty's PL 694. Stephens on PL 120. Walker vs. Walker, 1 Wash. (Va.) 135. Shelton vs. Pollock, I Hen. & Munf. 427. Hill vs. Harvey, 2 Munf. 525, and the cases in the note. Green vs. Bailey, 5 Munf. 251.

And admitting there is error in the particular exception, the judgment will not be reversed, if it appear distinctly upon the whole record, that the prevailing party was entitled to succeed. Haughton vs. Sleuk, 10 Vermt. Rep. 520.

The object of a proceeding in error is to reach the judgment, and to avoid it, when it does not possess the elements upon which alone all judgments should stand. But a Court will never set aside a judgment, because error may have been committed upon some particular point, where an examination of the whole record conclusively shows, that the judgment was correctly rendered. Ottin Harman vs. Kelly, Payne and others, 14 Ohio Rep. 502.

Another familiar rule is, that an appellate Court will not reverse a judgment,...