Summary
In S. v. Mills, 13 N.C. 420, the Court in their opinion use the expression "in the presence of the party," etc. It is manifest the owner is meant, for in the succeeding sentence they say "where they neither put the owner in fear nor provoke him to an immediate redress of his wrongs, nor excite him to protect the possession of his chattels, by personal prowess — and none of these can happen in the absence of the owner and his family — the trespass is not indictable."
Summary of this case from State v. PhippsOpinion
(June Term, 1830.)
1. Co-defendants in an indictment cannot be witnesses for each other, unless they have been first acquitted or convicted, and this although their trials are to be had in different counties.
2. An indictment for a forcible trespass upon personal property, greater force must be averred than is expressed by the words vi et armis. The trespass must involve a breach of the peace, or directly tend to it, as being done in the presence of the prosecutor, to his terror or against his will.
3. Actual possession by the prosecutor must be averred; but an indictment which averred the legal possession of the prosecutor, and that the defendants with strong hand, unlawfully, violently and forcibly did seize, arrest and take from the prosecutor, was held sufficient.
The defendant was indicted for a forcible trespass. The indictment was as follows: "The jurors, etc., present that one Rhoda Waller of, etc. was on, etc., then and there lawfully possessed of certain negro slaves, named, etc., and the said R. W., being so possessed, Daniel Bradham, late of, etc., James Mills, late of, etc., and Jesse Ballard, late of, etc., afterwards — to wit, on, etc., at, etc., with force and arms, and with a strong hand, at, etc., unlawfully, violently, forcibly, and injuriously, did seize, arrest, and take from the said R. W. the aforesaid negro slaves, and did then and there unlawfully, forcibly, and violently keep, hold, and maintain the possession of the said slaves to the great damage of, etc."
Gaston, for the defendant.
The Attorney-General, contra.
FROM DUPLIN.
After not guilty pleaded by the defendants' Mills and Bradham (Ballard not having been arrested), the cause as to Bradham was removed to an adjoining county. At the same term of the Court, Mills, being upon his trial, offered Bradham as a witness; but his Honor, Judge STRANGE, rejected him as incompetent. A verdict was returned for the State, when the counsel for Mills moved in arrest of judgment, because the indictment did not charge that the defendants had taken the slaves from the actual possession of the prosecutrix. The motion (421) was overruled by his Honor, and judgment entered up for the State, and the defendant appealed.
There can be no doubt that an accomplice, merely as such, is a competent witness on either side. Hawkins, P. C., Book 2, ch. 46, sec. 18, states that it is no exception to a witness that he confesses himself guilty of the same crime, if he be not indicted for it. When indicted, however, he adds, accomplices are good witnesses for the King until they be convicted. I take it, the rule is perfectly established as thus laid down. It is found in all the text writers, and many adjudged cases. The very manner in which Hawkins states it would exclude the accomplice, jointly indicted, from testifying on behalf of his codefendant. He first says that an accomplice not indicted may be a witness for or against a prisoner, and then further remarks that accomplices, jointly indicted, may be witnesses against the prisoner. This excludes the idea that he can testify for him. It must be obvious that an accomplice indicted can only be called for the State by his own consent. For he never can be forced to give evidence upon an indictment in which he stands accused. If he cannot be compelled to testify against the prisoner because he himself is implicated, neither do I think, for the same reason, ought he to be permitted to give evidence for him. I do not know that his exclusion depends so much upon his direct and particular interest in the verdict touching his codefendant as upon a principle of public policy arising out of the presumption that it is dangerous to suffer one, apparently upon the record guilty of the same offense, to exculpate his associate in crime. For, after bill found, a defendant is presumed to be guilty to most, if not to all, purposes, except that of a fair and impartial trial before a petit jury. This presumption is so (422) strong that in the case of a capital felony the party cannot be let to bail. It seems likewise to have been the ground upon which the Courts have refused to hear them in exoneration of their companions more than of themselves. The force of the principle of association to elude, as well as to disregard and resist the law, is so powerful that an honest and impartial relation cannot be hoped for. But whatever may have caused the rule, it is found by us as an ancient one, thoroughly incorporated with the law of public trials; and can only be annulled by the law-making power. It is so laid down by Mr. Justice Buller (Law of Nisi Prius, 285), and in Mr. McNally's Treatise, 214. And Lord Ellenborough says (in Rex v. Laforce, 5 Esp., 155), that "he had never known joint defendants to give evidence for each other," and he rejected the witness, although he was not on trial, having suffered judgment by default. He said when a defendant has been fined then he is a witness. And with this accord other books. ( Rex v. Fletcher, 1 Str., 633.) They state the uniform method to be for one defendant to plead guilty and be fined, or if no evidence be produced against him on the joint trial, for the jury to pass on his case. He may then give evidence for the others. (1 Gilb. Ev., 117.) To the same effect have been the practice and decisions in this State. So far as my observation has gone, I can speak to the unvarying usage. The question was made in the late Supreme Court in 1814, in the case of Rebecca Carter, who was indicted with Fannie Snow for murder. The indictment was found in Caswell and removed, as to the former, to Guilford. Upon her trial the other was offered as a witness, and rejected by Judge HALL, who brought the question up. There was a difference of opinion, but a majority of the Court thought the witness was incompetent. The dissenting (423) judges, I learn, considered the rule as applying only to cases of joint trial, as well as a joint indictment. But in this, I think, they were mistaken, as is shown by the case of Rex v. Laforce, just quoted and a case in New York. People v. Bill, 10 Johns., 95. Carter's case has been held the law of all cases on the circuits for the last fifteen years. It is further contended that here is not only a separate trial, but that by the change of the venue as to the witness it became a separate indictment; in which case each defendant is certainly competent to speak for the other. I do not perceive how the consequence demanded follows the removal. The parties are indeed to be tried separately, but each is to be tried on an indictment against both, as much as if several trials took place in the same Court. But the objection is removed by the authority of Carter's case, in which precisely the same state of facts existed.
Not reported.
The objection to the indictment is founded on the position that at common law no trespass either on lands or chattels was indictable without a breach of the peace; and that as to chattels, so the law now remains. I do not suppose that an actual breach of the peace is necessary to make a trespass a crime. But certainly it must be something more than a mere civil injury, or that degree of force which is expressed by the terms vi et armis. The act must involve a breach of the peace, or manifestly and directly tend to it as being done in the presence of the party to his terror, or against his will. The force or the numbers can make no difference (except under the statutes of forcible entry), where they neither put the owner in fear, nor provoke him to an immediate redress of his wrong by force, nor excite him to protect the possession of his chattel by personal prowess; and none of these can happen in the absence of the owner and his family. Hence, "strong hand" and "numbers"in this indictment do not of themselves import more than the requisite force. The presence of the owner cannot be implied (424) from them. They are found first in the statute of 5 Richard II, and relate to a forcible entry, which may be under the statute, if done violently, as well in the owner's absence as presence. Nor would the lawful possession of the prosecutrix stated in the indictment suffice. For that would be true of a mere constructive possession. But the indictment goes on to charge, after the lawful possession of Rhoda Waller, that "the defendants, with strong hand, unlawfully, violently, and forcibly did seize, arrest, and take from the said R. W. the said slaves." "Taking from her," in ordinary parlance, is certainly to be understood as taking from the person, and the force shows the want of consent, or, at all events, of a free consent. The words to any common understanding carry the idea of personal presence. The facts are not, indeed, charged with the utmost precision. But a charge of taking from another with force and violence does seem plain, intelligible, and explicit enough in the case of a misdemeanor.
PER CURIAM. Affirmed.
Cited: S. v. Tuttle, 145 N.C. 488, 490.
(425)