Opinion
October Term, 1799.
If an action of trespass is brought for killing a slave, pending an indictment for the same fact, and the indictment be first tried and the defendant acquitted of the felony, that proves that the trespass never was merged, and the plaintiff may proceed to his action.
Browne, for the defendant. I contend that the plaintiff is not entitled to maintain this action, and that it will lie, by the general principles of law, yet the writ in this case was prematurely sued out, being done before the determination of the criminal prosecution against the defendant. By the Act of 1774, cap. 31, the offense of killing a slave, the property of another, if committed under such circumstances as, in the case of a freeman, would have amounted to murder, was punishable upon the first conviction with twelve months imprisonment, and by paying the owner the value of the slave; upon a second conviction the offender was punishable with death. By the Act of 1791, cap. 4, the punishment is altered to death upon the first conviction, and the crime is placed in all respects upon the same footing with the murder of a freeman. Thus, if the offense amounted to murder, the civil remedy is merged in the felony; if it amounted to any inferior species of homicide, the offender must be absolutely acquitted upon the indictment, and (142) could not have been found guilty in this action, where the killing must have appeared to the jury willful and malicious; and if so, the offense is felony. The policy of the law in this respect is wisely directed to the public security, by compelling those who have been injured by means of a felony to prosecute the offender criminally. But if the party may obtain a recompense by a civil action, very many offenses will remain unpunished. If it shall be answered that the party plaintiff has in this case prosecuted criminally, and there by entitled himself to sue, yet at all events he should have waited the final determination of the charge before he instituted the suit. 1 Bac. Abr., 64, in notis.
Baker, for the plaintiff. The rule laid down on the other side is an useful and politic one, when applied to cases within the reason of its operation, but manifestly leads to unjust consequences when extended to others which are not intended to be affected by it. The law has in view that there shall be every reasonable motive to incite men to the prosecution of those by whom they have been injured, by an act amounting to felony, in order that the public justice may be satisfied; but when this is done, there is neither reason nor justice in withholding from the injured party the satisfaction which the offender is able to make him. If a person guilty of felony be pardoned or burned in the hand, he is afterwards liable to the action of the individual. 1 Bac. Abr., 64. Why should he not be equally liable after an acquittal where the prosecution has been bona fide? The jury has found the trespass and assessed the damages, and the Court will not disturb the verdict unless some plain rule of law demands it. As to the suit having been brought before the determination of the criminal prosecution, that is right or wrong according to the event. If a conviction had taken place, then the Court would have made the payment of the value of the slave a part of their judgment, and of course the present suit would not lie; but as the defendant was acquitted, it does not signify when the suit was brought.
This was an action of trespass for killing a slave, the property of the plaintiff, who had been hired to the defendant. The jury found a verdict for the plaintiff, under the direction of the Court, stating to them that in point of law the defendant was liable, if the facts charged in the declaration were established by satisfactory evidence. The objection taken in the trial was that the offense charged amounted to felony, the civil remedy for which, although the defendant had been indicted and was acquitted, was nevertheless merged in the crime. And now, upon a motion for a new trial, it was argued by
It is not necessary to inquire what would have been the legal consequences as applied to the present suit if a felony had been committed; because that fact, having been properly put in issue upon a criminal prosecution, has been negatived by the finding of a jury. The plaintiff, in prosecuting for the felony, has done all that the law requires of him, and the acquittal of the defendant could be no broader than the charge; consequently, the trespass remains. I do not think it necessary to decide whether, in any case of trespass, it would be a good defense that the facts proved amounted to felony, although the charge in the declaration was of a trespass merely; because I am clearly of opinion, from the circumstances of this case, that the verdict is properly found.
HAYWOOD, J., assented.
Motion denied.
NOTE. — The doctrine of the merger of trespass in felony does not apply in this State. White v. Fort, 10 N.C. 251.