Opinion
December Term, 1824.
The merger of a trespass in the felony (when the trespass is a felony) is a doctrine of the English law, founded not on policy but on the King's right by forfeiture; and as forfeiture is not here a consequence of felony, or, at any rate, if it be, is never asserted, the doctrine does not apply in this State.
APPEAL from Daniel, J., at NORTHHAMPTON
(262) Hill and Gaston for plaintiff.
Seawell for defendants.
Trespass vi et armis, in which the jury below found a verdict for the plaintiff, subject to the opinion of the court on a point reserved, which is as follows.
This was an action to recover damages of the defendant for the burning a tavern house and the furniture therein, privately in the night, which belonged to the plaintiff, which stood a short distance from the house in which plaintiff and his wife lodged. Doctor Smith, who lived with the plaintiff, slept in the tavern house; and it was the building in which travelers slept who tarried with the plaintiff. The (252) plaintiff had preferred to the grand jury a bill of indictment against the defendant for arson in burning the house, which was returned "Not a true bill." No other proceedings criminaliter were had upon the charge, and the plaintiff brought this action. The point reserved is whether it be not necessary to the maintenance of this action that the defendant be either convicted or acquited [acquitted] by a trial before a petit jury? Whereupon, by the court, Daniel, J., it is considered that it is necessary to the maintenance of this action that the defendant be either convicted or acquitted by a trial before a petit jury on an indictment for felony; and, therefore, judgment was rendered for the defendant, and plaintiff appealed.
The two objections taken to the plaintiff's recovery are that the civil trespass is merged in the felony, a prosecution for which ought first to have been regularly had to the conviction or acquittal of the defendant; and that the rejection of the bill by the grand jury is not a sufficient compliance with the law to enable the plaintiff to maintain the action.
It is difficult to ascertain with precision the source whence the doctrine of merger was derived. As it exists only in those cases where forfeiture is the consequence of attainder or conviction, a presumption is furnished that the primary object was to cause persons to prosecute crimes, and thereby to increase the resources of the crown; on the other hand, as forfeitures were annexed only to the higher crimes, treason and felony, the suppression of which was most essential to the peace and welfare of society, the civil remedy may have been suspended in order to prompt the injured to (263) bring offenders to justice; not to increase the treasure of the sovereign, but to guard society against the effects of these more aggravated and, in early ages, more frequent offenses. Many offenses below the grade of felony are now more dangerous to society than many felonies; and when it is inquired why the civil remedy is not suspended in them, until the offender is brought to trial criminally, the answer is, such offenses have grown out of the artificial state of society, and were unknown to the rude simplicity of its early condition. In that, robbery and rapine were the crimes to be punished; in its more advanced stages, artifice and fraud.
Whatever may have been the origin of the rule, there are ample proofs scattered through the books of its having been a fixed rule of the common law before the period of our revolution; and that in cases of conviction trover or trespass would lie against the wrongdoer. The principle of the action is referred to the policy of effecting the punishment of felons, and preventing the injured party from compounding them. Lofft., 90. There are dicta, but no adjudged case, countenancing a suit after acquittal until that cited from 12 East. What is said in that case is so strong, and to my mind unanswerable, as to conclude the question: "All the cases which show that an action lies after the conviction of the defendant for the felony apply strongly in support of it after acquittal; for it is a stronger case to permit the party injured to proceed upon his civil remedy to recover damages after a conviction of the offender when the law has, by means of the forfeiture of his property consequent upon a conviction, taken away from him the means of satisfying the damages. Besides, when a defendant, after an acquittal of the felony, is called upon to make recompense in civil damages to the party grieved, it would be stranger for him to be permitted to allege that he was not properly (264) acquitted than in the case it would be to allege that he had not been properly convicted. And here the defendant cannot say, against the record of acquittal, that this was a felony."
If this suspension of the remedy was the consequence of forfeiture alone, I should hold that it had no existence here; but I cannot satisfy myself that it is so. On the contrary, it appears to me to be one among the many inducements held out by the general policy of the criminal law for persons to prosecute. The rewards and immunities given to persons who bring offenders to justice, as well in cases where there is no forfeiture as where there is, afford abundant proofs of this policy. I cannot think that forfeiture has had any force in this State since 1778, when it was declared what part of the common law should be in force here. It is not probable that a prerogative should be designedly introduced which a most devoted, but at the same time an enlightened, supporter of the throne pronounced an "odious one." Lofft., 90. It was introduced originally to increase the king's ordinary revenue, a branch of which it constituted; and if such means of increasing the revenues of the State rightfully existed, it would not have been overlooked by the succession of able men who have filled the office of Attorney-General at different periods. Yet, with the exception of the confiscations and attainders during the war, not a single instance has occurred in the memory of any one wherein a forfeiture has been exacted. Yet some unfortunate persons have fallen victims to the law, leaving wealth which is now enjoyed by their posterity. I lay no stress on the two acts which have been passed, suggested, no doubt, by the fears of relations and creditors, and obtained from abundant caution. They ought not to be considered as legislative declarations that forfeitures existed, for every one knows how little interest is taken in private acts generally.
As to the manner in which the injured party shall prosecute, (265) it is in vain to search the books, because instances of suit after acquittal have only recently occurred. All that good sense and reason seem to require is that the matter should be first heard and disposed of before a criminal tribunal. If the party prefer an accusation in good faith, although the bill should be rejected by the grand jury, he has done as much as he can do towards prosecuting, and has satisfied the policy of the rule. In England he might have his appeal, but here he can do nothing more than has been done in this case. I think the plaintiff is entitled to judgment.
It cannot be denied but that forfeiture for felony was part of the laws of England; and that the law in that respect, except so far as related to suicide, has not been altered by the laws of this State; but I believe there is no instance where the State has ever availed herself of the right which accrued by forfeiture; no mode has been pointed out by law to make the right available; no commissioners of forfeited property have been appointed, as has been done in regard to escheated property, and as was done in regard to confiscated property during the Revolutionary War. If, therefore, the enforcement of the right of forfeiture was the reason why the creditor of the felon could not recover in England, that reason will not hold good in this country.
The law in regard to lands had relation to the time of the fact committed, in regard to goods and chattels, to conviction of the felon. 4 Bl., 387. It is said, in the same book, "that in gross and atrocious injuries the private wrong was swallowed up in the public; that satisfaction to the individual was seldom made, the satisfaction to the public being so very great that, as the public crime is not otherwise avenged than by forfeiture of life and property, it is impossible afterwards to make reparation for the private wrong, which can only be had from the body or goods of the aggressor." In England, after forfeiture, there is nothing left for the creditors of the felon. In this State the fund out of which creditors may expect (266) payment has never, as far as I know, been diminished.
But it is said that the law is founded in policy, which postpones or suspends the claims of individuals until the acquittal or conviction of the person charged with the felony. 12 East, 409. For, otherwise, felony would go unpunished. 1 Hale, 546.
The same evidence which showed a felony had been committed was also the foundation of the king's claim by forfeiture, and to this claim of the king that of the individual was obliged to yield until the question was settled whether a felony had been committed or not. If a felony had been committed, the claim of the individual was hopeless, for the reason before given; if no felony was committed, the king's claim was at an end, and the individual was at liberty to pursue the aggressor by suit. This appears to me to be the true reason why the suit of the individual was suspended until the issue of the prosecution for felony was known. Policy does not suspend the individual's right of suing where offenses are committed that are not felonies, as in perjury, forgery, or even in capital cases that are not declared felonies. 4 Bl., 97. If, then, policy dictated the rule, it was a policy intimately connected with and strongly allied to the king's interest to forfeitures upon conviction. But in England, where the king's claim was at an end, the individual's claim was available; so, I think, in this State, when the public asserts no claim by forfeiture, the claim of the citizen should be available.
But if I am mistaken as to this rule of policy, the record states that the plaintiff, by consent of the Attorney-General, preferred a bill of indictment against the defendant, and the grand jury returned it "Not a true bill"; and they did so, for aught that appears to this Court, without any collusion or fraud on the part of the plaintiff. That being the fact, I think, in the spirit of that rule of policy, (267) he is entitled to his action. The grand jury were the only and proper tribunal from which a prosecution for the felony could originate. The plaintiff had no control over their finding.
It is true that finding is no bar to another prosecution; but if the plaintiff has acted without fraud, and no other witness can be procured to go before the grand jury, it is conclusive on him. As to the objection that the same evidence which has enabled the plaintiff to recover this verdict would have induced the grand jury to find the bill of indictment "A true bill," I cannot give any solution or explanation which I know to be founded in fact; but I can readily conjecture how such a thing might happen. Witnesses must go before the grand jury in person; but if they cannot be procured, their depositions, under certain circumstances, may be read on a trial in a civil action.
Goddard v. Smith, 1 Salk., 21, has been read to show that it was not sufficient that the bill of indictment should have been returned "Not a true bill," but that there should have been either a conviction or acquittal upon it. That was an action for a malicious prosecution, where the plaintiff alleged in his declaration that he was in due form of law acquitted on the indictment. The record showed that a nolle prosequi had been entered; the court said the record did not support the declaration, for the nolle prosequi was a discharge from the indictment, but not an acquittal of the crime. But they did not say that if it had been set forth in the declaration that a nolle prosequi had been entered, and the record had supported that allegation, that the plaintiff could not go on with his suit, because the prosecution had not been finally decided upon.
I think the plaintiff is entitled to judgment.
If A. steals the goods of B. and sells them to C., B. may recover (268) the goods of C. before A. is convicted or acquitted of the felony; but if B. sells the goods to C. in market over, B. could not, at common law, recover the property either before or after the conviction of A., for the sale in market overt changed the property; in neither case, that is, either before or after the conviction, at common law, could B. recover them from A., the thief. If policy and not forfeiture occasioned the merger, why could B. sustain his action against C., where they were not sold in market overt, and not against A.? Policy requires the conviction or acquittal of A. as much in the case where the goods are found in the possession of C. as when found in A.'s possession. If policy governed, the inducement to prosecute offenders should operate in both cases; there is as much necessity in the one case as the other. But at the common law there was no inducement to prosecute to a conviction, for before the statute of Hen. VIII the goods were lost to the owner upon a conviction; the former owner could not reclaim them even from the thief. It was his interest to prosecute, but not to convict. What had policy, then, to do with encouraging an honest prosecution? It was on the other side. But that statute repeals the common law in cases where the former owner aids in the prosecution by awarding a restitution; but the law of merger was in force long before the passing of this statute, and it is the influence of this statute which sustains the owner's right to the goods after a sale in market overt, for it gives restitution of the goods; it acts in rem on the thing, and annuls the common-law effect of a sale in market overt. By the statute of Hen. VIII the property is ordered to be restored to the owner who aids in the prosecution, and it is his whenever found and under whatever circumstances. Upon a conviction in an appeal of robbery, the appellant might obtain his goods if in the hands of the felon; but before the statute it affected not sales in market overt. The statute may since have been extended to convictions on appeal. I have not examined, nor is it necessary, in this case. (269) This is almost enough, if not quite, to prove that the law of merger is not founded on policy alone. But further, it is confined in its operation to cases of felony, that is, to cases of forfeiture; for all felonies amount to a forfeiture. Are there, then, no other crimes which the policy of the law forbids being compromised, or where inducements should not be held out for a prosecution? Forgery, perjury, every species of the crimen falsi, heresy, which latter was punished with death? In none of these is there a merger. For what reasons are not some of them as atrocious as the lesser larcenies; for instance, petty larceny, or even the stealing above the value of twelve pence? Why, then, does the law of merger not prevail in that case? Because there is no forfeiture. When we see the law of merger invariably follow the law of forfeiture, as the shadow does the substance, and never find it where forfeiture is not, it is a strong reason to believe that it is founded upon it and grows out of it; for it is a maxim in most governments, at least, it is so in England, that where the rights of an individual conflict with the rights or claims of the sovereign, that the rights of the individual must give way; and as by forfeiture all the goods of a felon are forfeited to the king, even those which were the subject of the prosecution, and for the stealing of which he was convicted, to sustain an action against him would impair the rights of the crown, as thereby the fund to be forfeited upon conviction would be lessened. If policy forbids the action, I should think it might be pleaded; and yet we find no such plea, for it appears to me that the maxim Nemo audiendus est suam turpitudinem allegare does not apply to such cases where policy forbids the act, for it is better that a man should shield himself by his own infamy than that the public policy should be violated. The manner in which it is got at shows that it forms no defense, that the sovereignty acts without regard to the defendant's benefit. If it appears in the (270) declaration, the defendant demurs; this is not offering this as a defense; it already appears; the demurrer calls the attention of the court to it. So if moved in arrest of judgment; but it is never pleaded. If it appears by the evidence on the trial, the court (that the rights of the crown may not be diminished) directs the jury to acquit the defendant. Upon the whole, I think that forfeiture, and not policy alone, gave rise to the doctrine of merger.
Whether the law of forfeiture is still in force, in cases where the State insists on such right, I think it is entirely unnecessary to decide. But I am not disposed to postpone doing justice to the plaintiff, in expectation that by so doing I shall impair the rights of the State by lessening the felon's estate, when the State comes to claim the forfeiture; for it would be a vain and fruitless expectation, for the State has not for at least half a century, and perhaps for a much longer time, in a single instance asserted that right. Therefore, I say, whatever may be her actual rights if she thought proper to enforce them, I cannot consent to delay doing justice to this plaintiff lest I should interfere with the claims of the State, when from the former consent of the State it is reduced to a moral certainty that no such claim will be asserted.
I do not think it necessary to give my opinion on the other point, to wit, that even if the rule of merger be founded on policy, enough has been done by the plaintiff in causing a bill of indictment to be preferred against the defendant, which the grand jury refused to find; but would observe that if in England an acquittal before the petit jury was required, such rule might not apply here; for there, if the Attorney-General will not prosecute or the grand jury will not find a bill, yet the person injured may still bring the offender before a petit jury by a prosecution entirely under his control, to wit, an appeal; and that the most rigorous policy could not require more in (271) either country than the utmost exertions of the injured party to bring the offender to justice. In this country the injured party's utmost efforts end with an honest exertion before the Attorney-General or before the grand jury. In England more may be required of him, because there he can do more, a trial before a petit jury, for by his own act he can effect that. But for the reasons given in the foregoing part of this opinion, I think that the judgment of the court below should be reversed and judgment given for the plaintiff.
I am aware that Lord Ellenborough, in 12 East, founds the doctrine on policy. Whatever falls from that great judge deserves great weight; but it is mere dictum, not necessary to the decision of the case, it being an action brought to recover damages for an injury received by stabbing. The judge reported that it was within the statute, and therefore a felony, but the defendant had been acquitted; the question was, Could the action be sustained? It was adjudged that it could; for, let it be founded on forfeiture or policy, there was no merger; the acquittal barred future prosecutions, therefore, there could be no forfeiture. The policy of the law was complied with, for there had been a prosecution, and if not conducted with good faith, it might be shown. See 2 Term, 750, Harwood v. Smith.
Offenses made capital by statute, and not declared to be felonies, do not cause the trespass to merge, but where it is made a felony they do.
I think that judgment should be rendered for the plaintiff.
PER CURIAM. Reversed.