Opinion
September 1808.
Where the first offence is punished corporally, and the second with death, the defendant, on trial for the first offence, is entitled to the same number of peremptory challenges as if tried for the second offence; for a conviction may affect his life. [See Hooper v. State, 5 Y. 422, citing this case.]
Indictment for horse-stealing, under the Act of 1807, c 73, § 4. The act for the first offence inflicts corporal punishment, and the second death.
The question was, whether on the trial for the first offence the defendant was entitled to peremptory challenges, to the amount of thirty-five.
The 71st section of the Court Law provides, that "every person on trial for his life may make a peremptory challenge of thirty-five jurors."
WHITE and WILLIAMS argued for the defendant, and relied upon the former practice of North Carolina and this State, when clergy was allowed upon the first offence. The life of the prisoner is as much affected in the first instance now, as it was then; and the books show, that in clergyable offences, the Court must allow it whether claimed or not. They relied upon 2 H. H. P. C. 267, 378, 380.
The attorney-general, YEARSLY, argued e contra.
This statute does not alter the nature of the offence, and though the defendant is only to be punished corporally for the first offence, a conviction in this case may affect his life, and therefore he must be allowed his challenges. See 2 Inst. 164.
The prisoner was found guilty on Saturday the 8th instant, and the Court passed the following judgment upon him: —
That he be branded in the presence of the Court, on the inside of the left hand with the letter H, and on the inside of the right hand with the letter T, between the hours of twelve and four o'clock this day, and immediately taken to the common whipping-post, and there receive thirty-nine lashes on his bareback. On Monday, Tuesday, and Wednesday, the 10th, 11th, and 12th instant, between the hours of twelve and four o'clock, stand two hours in the pillory each day; be imprisoned twelve months from this date, and that the sheriff of Knox county put this sentence in execution.
ORIGINAL NOTE. — T. Humphreys, the brother of the defendant, was also tried and found guilty, and had the same sentence.