State v. . Anthony , 29 N.C. 234 ( 1847 )

The Court is of opinion that the challenges were properly allowed. It is true, the statutes which give slaves the trial by jury in capital cases do not specify the qualifications of the jurors farther than that they shall be owners of slaves, but only require (235) that they shall be good and lawful men, and prescribe that the trial shall be conducted under the same rules, regulations and restrictions as trials of freemen for a like offense. Rev. Stat., ch. 111, secs. 43, 45, 46. Yet the latter provisions are sufficiently comprehensive to entitle the slave to all those privileges which are intended to secure to an accused person a jury indifferent between him and the State. It is clear the prosecutor, or one nearly related to him, would not be a good juror if challenged for that cause by the prisoner. The application of theprinciple on which that rule stands, and on which the common law proceeds in forming juries in all cases, necessarily excludes the owner of the slave or his son, and, by consequence, any other relation, from sitting on the trial. The concern in interest or feeling of those persons in the result is inconsistent with that indifferency which the law seeks. If this slave were the subject of a civil action between his owner and another, neither of those persons could have been of the jury, on the score of their favor for their kinsman. The same state of feeling prevents them from being held impartial on this trial. They are not "good and lawful men" in the sense of the statute. This is clear from the second proviso in the act of 1793, ch. 381, sec. 7, being the first that gave the trial by jury to slaves in the county court, which required that the three justices and jury of slaveholders who constituted the called court should "not be connected with the owner of such slave, or the prosecutor, either by affinity or consanguinity."

The counsel for the prisoner in this Court abandoned the objection taken in the Superior Court in arrest of judgment, that the indictment concluded at common law; and very properly, as the statute did not create the offense, but only ousted clergy. But he took another, namely, that the indictment was bad because it did not pursue the words of the act and lay the robbery to have been "in or near the highway. It appears that it was once usual to frame indictments in that (236) way at Newgate, as Lord Hale informs us. 1 Hale P. C., 535. But he certainly does not deem it necessary nor, as is plain, strictly proper; for he admits it violates the rule which requires certainty in indictments, and rather apologizes for it, as tolerated upon usage. The passage in which he cites a case from Trin., 38, Hen. VIII., of an indictment of robbery in quadam via regia pedestri, being held bad, which was urged on us as an authority that it should have been in vel prope, does not turn upon the omission of the words "vel prope," but that of altam, because, as he says, "it is not sufficient to say only via regia or viaregia pedestri, since the statute is touching a robbery on the King'shighway. Moreover, there are many precedents of indictments not in the disjunctive, but laying the offense positively in the highway, and others laying it near the highway. The King v. Stone, 1 Tremaine, 288, is an instance of the former, and that precedent is adopted by Dogherty, Cr. Cir. Com., 682; while Fowler's case, which is stated by East Pl. C., 785, is an instance of the latter. The more recent precedents in England do not aid us, as it is not necessary now to state any place, because the statute 3 W. and M. took away clergy from all robberies. But the older ones, and the reason of the thing, make it plain that an indictment, if good when it isin vel prope altam viam, is certainly so when it is in one count in the highway and in another near it.

PER CURIAM. No error.

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