
    Munford (a slave) v. The State.
    1. Former jeopardy: where acquittal of a greater is a bar to prosecution for mless offence. — An acquittal on an indictment for a greater offence, is a bar to a subsequent indictment for a less offence included in the greater, only where, under the indictment for the greater offence, the prisoner could be legally convicted of the less.
    2. Same : case in judgment. — A slave was indicted for the murder of V. A., and was convicted of manslaughter. The judgment was arrested because the indictment did not show whether the deceased was a white man or a negro. The prisoner was afterwards indicted for the manslaughter of V. A., a white man: — Held, that the former trial and judgment was no bar to the second prosecution, as the first indictment for murder was legally insufficient to support a conviction for manslaughter.
    Error to the Circuit Court of Carroll county. Hon. William Cothran, judge.
    
      B. R. Mayes, for plaintiff in error.
    The question presented by the record for the decision of the court is, Has Munford been tried for the same offence for which he is now indicted ? In discussing this question, as applicable to the facts involved in this case, it will be necessary to- inquire, 1st, What is the legal meaning of the term offence ? 2d, What is a trial, that will bar further prosecution for “ the same offence?”
    1. The term offence, as used in a legal sense, is relative, and is applied indiscriminately to anj' violation of criminal law. In' its most extended sense it is nearly synonymous with crime, (Bouvier, “ Offence,”) and it is in this sense that we have to deal with it. It is never applied to any specific violation of law. It does not of itself mean-murder, nor manslaughter, nor assault, nor yet battery. But it is the act of violating the law, the fact by which the law was violated — the corpus delicti; as in murder or manslaughter it means the act of killing, in assault the attempt to do another a personal injury, in battery the actual beating of another. This is necessarily so, for we find an offence often divided into degrees, and'each degree having a different punishment attached. This is well shown by authority. In the case of Bex v. Vandicomb & Abbott this point is held in substance. The defendants were first indicted for burglary, in breaking and entering a dwelling-house and stealing. The second indictment charged them with breaking and entering with intent to steal, and they pleaded autre fois acquit. The plea was overruled on demurrer, which was argued before all the judges of England, on the ground that the offences were not the same; Mr. Justice Buller, who delivered the opinion of the court, saying, "It is quite clear that, at the time the felony was committed, there was only one act done, namely, the breaking the dwelling-house. But this fact alone will not decide this case, for burglary is of two sorts: 1st, breaking and entering a dwelling-house in the night time and stealing goods therein; 2d, breaking and entering a dwelling-house in the night time, with intent to commit a felony, although^ the meditated felony be not, in fact, committed. The circumstance of breaking and entering the house is common and essential to both the species of this offence, but it does not of itself constitute the crime in either; for it is necessary, to the completion of burglary, “that there should not only be a breaking and entering, but the breaking and entering must be accompanied with a felony committed or intended to be. committed.” Russ, on Crime, 829. The deduction to be drawn is, that the breaking, entering and stealing form one act; and the breaking and entering with intent to steal form another, and that each is a separate and distinct offence.
    In Benham's case, the defendant was indicted for having in his possession a forged bank note of the Troy Bank, with intent to utter and pass the same, and with intent to defraud the bank. To this he pleaded a former conviction for having in his possession at the same time and place a bank note of the Mechanics Bank with the same intention. In deciding the plea the court say: “ He has been tried for having one of them in his possession, and convicted; and the question now is, whether he can be again tried and convicted for possessing each of the other notes of the different banks which he had at. that time; in other words, is the possession of each note holden at one and .the same time a distinctoffence, and punishable as a distinct crime? * * * The offence consisted in uttering and putting them off.” “It has. been decided that a person indicted for stealing nine one pound notes may be convicted upon proof of stealing only one: Rex v. Johnson, 8 Man. & Selw. 539, 548: Rex v. Clark, 1 Brod. &■ Bing. 487. There the substance of the offence is stealing notes ;• here the substance of the offence is having in possession coun-. terfeit notes. The number may add to the evidence of'guilt, but not to the number of offences. In an action for the penalty for insuring tickets in a lottery, where ten tickets were insured at one and the same time, Lord Kenyon held that but one penalty could be recovered. ” The State v. Benham, 7 Conn. R. 414. In Barrett's case, Kent, Oh. J., says: “ The indictment does not contain a venue in that part of it which avers that the de-. fendant made a fraudulent pretence in pursuance of the conspiracy previously and at another day formed. This is a material allegation, and it required a venue, for the act done in pursuance of ■ the conspiracy was the gist of the charge.” People v. Barrett, 1 Johns. 75.
    Any further debate as to this point is entirely set at rest bShepherd's case, where it is held that “the law is well settled that, upon an indictment for petit treason — in a servant’s killing his master, for example — an acquittal or conviction of murder for the same killing is a good bar.!’ 2 Hale P. C. 246. So if a man be acquitted upon an indictment for murder, it is a good-plea to an indictment for manslaughter of the same person ; or e converso, if he be indicted for manslaughter, and be acquitted, he shall not be indicted for the same death for murder, for they differ only in degree, and the fact is the same. • Holcomb's case 
      4 Co. R. 46, b'. So if a person be on trial for a theft, and by the proof it should appear that the theft was accompanied with such facts as would constitute robbery, an acquittal or conviction of the larceny would be a bar to an indictment for the robbery. The same fact of stealing is in both cases the subject of inquiry, and in both cases essential. The State v. Shepherd, 7 Conn. R. 55. And the court decided the case in conformity with these views. See The State v. Nichols, 8 Conn. R. 496 ; 'Com. v. Roby, 12 Pick. 496; Com. v. Kinny, 2 Va. Cases, 139 ; Fiddler v. The State, 7 Humph. 508; Me Gowan v. People, 17 Wend, 386 ; Roberts v. The State, 14 Gra. R. 8.
    The case of Roberts v. The State, 14 Gra. R. 8, is pointed. The defendant was indicted for robbery, to which he pleaded autre fois convict for burglary, averring them to be the same felony. A demurrer was filed, and the Supreme Court enter into a lengthy examination of the question, and hold that the plea was good, at the same time declaring their regret, for they thought the defendant a fit subject for punishment. The court say: “ Of the sufficiency of the plea of a former acquittal or conviction, the following is said to be a true test, viz., whenever the prisoner might have been convicted on the first indictment by the evidence necessary to support the second; or, in other words, whenever the evidence necessary to support the second indictment would have sustained the first. There seems to be some difficulty in applying this rule (as above expressed) in all cases. It may be said that the prisoner could not have been convicted on the indictment for' burglary, by the proof necessary to convict on the indictment for robbery; and the evidence necessary to support the indictment for robbery would not have insured a conviction on a prosecution for burglary. If the indictment for robbery, however, had been first tried, then, upon the trial of the burglary, the proof necessary to support that last trial would have been such as would have been sufficient to sustain the first prosecution; because, after proof of the breaking and entering by the prisoner, the State would have proceeded to prove the violent stealing from the prosecutor, in order to show the breaking, &c., with felonious intent; and this would have been proof of the robbery. To avoid any confusion on this subject, we adopt the rule as it is otherwise more generally, and perhaps more accurately, expressed, viz., that the plea of autre fois acquit or convict is sufficient, whenever the proof shows the second case to be the same transaction with the first." See 7 Humph. 508 ; Thatch. 206, 207; Boceo v. The State, 8 Geo. 357.
    "With reference to the present case, it may be said, as the court argue in the above case with reference to the first rule laid down by it, that the defendant here could not, on the indictment for murder, have been found guilty of manslaughter. Grant it. But let us suppose, as the court did in that case, that the defendant had been indicted first for manslaughter, and after-wards for murder: then, upon the trial of the murder, the proof necessary to sustain the indictment would have been sufficient to procure a conviction of the manslaughter. But the court is not satisfied with the rule thus laid down, as it is difficult to apply it to every case, and adopts the same rule in substance, but more accurately expressed, as the court say, in the second rule discussed, which second rule has been sanctioned by the courts of Kentucky, Tennessee, and Mississippi, in the cases of Duncan v. Com., 6 Dana, 295 ; Fiddler v. The State, 7 Humph. 508; Boceo v. The State, 8 Geo. 357, respectively.
    In the last-mentioned case, (Boceo v. The State,) the court hold, that when the transaction is the same, the plea of autre fois convict is good. I have not the case at command, and can only state it from recollection. Rocco was indicted for retailing, and pleaded a former conviction. The court hold that the plea is a good one when the offences are identical; and by identical offence it means the same transaction. In its opinion the court frequently uses the term “identical offence," and shows clearly that it means thereby the same transaction.
    
      “ It is to be observed that the plea of a former acquittal or conviction must be upon a prosecution for the same identical act and crime.” Blk. Com. 336. That the acts ave the same is necessarily the case; that the crime is the same Blackstone thus declares. “The other species of criminal homicide is that of killing another man. But in this there are also degrees of guilt which divide the offence into manslaughter and murder.” 4 Blk. Com. 190’. It is the offence which is divided, not the of-
      
      fences. These authorities illustrate clearly that, iu all cases, it is the act which comprises the offence, and not the degree of guilt incurred. The maxim is, “Legislatorum est viva vox, rebus et nonverbis legem, impunere ” — “ The voice of legislators is a living voice, to impose laws on things, not on words.”
    The offence charged in both indictments against Munford is the hilling of Ashley — is the corpus delicti. Then—
    2. Has Munford been tried for this offence, or, in other words, what is a legal trial, such as will bar a further prosecution for the same offence, and has the defendant undergone such trial ? The rules which are applicable to this question are many, and are apparently somewhat contradictory; but all, I think, when viewed in connection with the circumstances under which they were given, and in connection with the context, agree in throwing around the prisoner a shield which will effectually protect him from a further prosecution. Under our law, as at present framed, in the case of a negro killing a white, the State can at its option indict for murder, or manslaughter, or for both. In the present case, the State elected first to indict solely for murder. The indictment was so framed that the question of manslaughter could not be inquired of by the jury. Upon that indictment a verdict of not guilty was returned. Hurt v. The State, 25 Miss. R. 378 ; Swinney v. The State, 8 S. & M,’ 576. It is now sought to try him for the manslaughter of the same person. This can only be done provided “ that, owing to some defect or circumstance, no valid final judgment could have been rendered against the prisoner” if he had been convicted on the first indictment. Bish. Crim. Law, 662, 663 ; Russ, on Crime, 835; People v. Barrett, 1 Johns. 75. It cannot, and will not, be contended “that no valid final judgment could have been rendered against the defendant ” if he had been convicted on the first indictment. But, in considering this rule, let us do so in connection with another, which is laid down as a criterion by which we are to be guided in determining cases of this nature. The rule is, that “ if the prisoner could have been legally convicted on the first indictment upon any evidence that might have been legally adduced, his acquittal on that indictment may be successfully pleaded to a second indictment, and it is immaterial whether the proper evidence were adduced on the trial of the first indictment or not.” Whart. Grim. Law, 252 ; Hex v. Embden, 9 East, 214; 'People v. McGowan, 17 Wend. 886; 1 Arch. Grim. Pr. 112 ; 1 Euss. on Crime, 832, 838. There can be no doubt but that the. indictment in the first instance was good, and that a judgment based upon that indictment, and a verdict of guilty, could not have been arrested. Suppose the jury had found the defendant guilty, and he had moved in arrest, “because the indictment was bad, inasmuch as under the indictment the jury could not consider whether he was guilty of manslaughter, but were confined to the question of murder:” the court would not have entertained such a motion. It would say, “A motion in arrest can only be sustained for matter apparent on the face .of the record. Admit every fact to exist which appears on the record, and are these facts sufficient to enable the court to say whether, in point of law, the crime for which sentence is demanded has or has not been committed ? They are. The record, charges in regular form every fact necessary to constitute murder. The verdict ascertains in point of fad the prisoner is guilty as charged.” The sentence of the court must follow.
    The indictment being good, of course " evidence might have been legally adduced upon which the prisoner could have been legally convicted,” and, of necessity, “a valid final judgment could have been rendered against the prisoner on the first trial.”
    Another rule is: “We may observe that the great general rule upon this part of the subject is, that the previous indictment must have been one upon which the defendant could legally have been convicted; upon which his life or liberty was not merely in imaginary, but in actual, danger, and, consequently, in which there was no material error.” 1 Arch. Grim. Pr. 112. This rule fully meets the present case, and will obviate all difficulties which may arise in the decision of the present question. Here we find clearly and distinctly enunciated what, in all cases of autre fois acquit, should be steadily kept in mind, and what would form a safe criterion in every case to judge of their correctness, viz.: Was the prisoner’s life in danger on the first trial ? If so, it is good. If not, it is bad. We have here, also, declared that, if his life was in danger, there was no material error in the proceedings. To'the same point we have it emphatically laid down by Mr. Justice Gaselee "that, upon the result of all the authorities, the question is, whether the'prisoner could have been convicted on the former indictment; for, if he could, he must be acquitted on the second.” Russ, on Crime, 834. It is against the policy of the law, as it is against justice and humanity, that a person’s life should be endangered more than once for the same offence. •
    In the case of Bex v. Vandercomb & Abbott, the rule is declared “that, unless the first indictment were such as the prisoner might have been convicted upon, by proof of the facts contained in the second indictment, an acquittal on the first can be no bar to the second.”» Russ, on Crime, 830; Boberts v. The State, 14 Ga. R. 8.
    At first blush, this rule seems to operate against the position here taken; but, upon examination, it not only does not do so, but sustains it. Let us see what the meaning of the court was, from the circumstances and from what it said in delivering its opinion. The defendants were indicted for burglariously breaking and entering the dwelling-house in the night time, of M. & A. Nevill, with intent to steal. They pleaded autre fois acquit, upon an indictment for burglariously breaking and entering the same house and stealing goods of M. & A. Neviíl and S. Gibbs, the plea averring the identity of the persons and transactions. The demurrer to the plea was sustained. Mr. Justice Buller, delivering the opinion of the court, said: “It is quite clear that, at the time the felony was committed, there was only one act done, viz., the breaking the dwelling-house. But this act alone will not decide this ease, for burgláry is of two sorts: first, breaking and entering a dwelling-house in the night time, and stealing goods therein ; secondly, breaking and entering a dwelling-house in the night time with intent to commit a felony,-although the meditated felony be not in fact committed. The circumstance of breaking and entering is common and essential to both species of this offence, but it does not of itself constitute the crime in either, for it- is necessary, to the completion of burglary, that there should not only be a breaking and entering, but the breaking and entering must be accompanied with a felony actually committed, or in* tended to be committed, and these .two offences are so distinct in their nature that evidence of one of them will not support an indictment for the other.” This is, in substance, saying, that the breaking and entering a dwelling-house in the night time, which alone was common to the two indictments, was not an indictable offence, but merely a trespass ; in order that these facts should be indictable, other facts must be proven, viz., a stealing therein, or an intent to commit a felony ; that either of these facts taken together with the breaking and entering, amounts to an indictable offence, and that a breaking and entering and stealing, or a breaking and entering with an intent to commit a felony, are two separate and distinct offences; so much so that evidence of the one will not support an. indictment for the other. Consequently, if a defendant is indicted for the one, and the other is proved, upon motion, the testimony will be excluded; or, upon motion, the jury would be instructed to find for defendant. The proof of the one does not tend to prove the other. Is this the case with an indictment for murder or manslaughter? Will any one say, on an indictment for either, the proof of the one does not tend to establish the other ? It is thought not. On an indictment for murder or manslaughter, but one fact is necessary to be proved, viz., the killing. When this is proven, the State has established a prima facie case of murder; East Crown Laws, 224; Mitchell v. The State, 5 Yer. 340 ; and it then devolves on the defendant to show circumstances in mitigation, extenuation, or exculpation. When the State has proven the one fact common to murder and manslaughter, it has made out a prima facie case, and the defendant’s life is in jeopardy; when the State has proved the one fact in burglary common to both these species of offence— viz., the breaking and entering — it has not made out a prima facie case, and the defendant’s life is not in jeopardy ; the prosecution has to go further, and prove one of two separate and distinct facts, the proof of one of which does not tend to establish the other; so the court hold in this case. In murder, the fact of killing being proved, the law presumes the malice till the contrary is proved; in burglary, the fact of the breaking and entering-being proved, the law does not presume a felony, but the felony must be proved, and there being two hinds of felonies susceptible of proof, the establishment of the one does not tend to establish the other. On an indictment for murder, if the prosecution proves the fact of the killing, and at the same time proves mitigating circumstances which reduces the offence to manslaughter, the court would not, upon motion, exclude the testimony; for the jury are the judges of the fads, and they may disbelieve the •mitigating circumstances. The court is only the j udge of whether or not the prosecution has made out a case of guilt in law, and the jury is to determine whether it has been made out in fact. In burglary, on an indictment for the breaking, &c., and stealing, if only an intent to steal is shown, the prosecution has not made out its case in law, and therefore the testimony would be excluded, and therefore they could not he convicted upon that indictment.
    If this be not true, and the averment of malice (see The State v. Nichols, 8 Conn. R. 496) in one indictment and notin the other makes such a difference as to forbid a plea of autre fois acquit, then take the rule laid down in the opposite page, and which the learned writer (Russell) does not try to reconcile with the above principle, showing that he saw no difficulty, and the flattest con tradiction is apparent. It is, “If a prisoner could have been legally convicted upon an indictment on any evidence that might have been adduced, his acquittal upon that indictment may be successfully pleaded to a second indictment, and it is immaterial whether the proper evidence was adduced at the first trial or not.” But it is not possible that two rules, so well established, are irreconcilable, and especially is it remarkable'that the contradiction has not been discovered and commented upon by learned text-writers. That this must be the explanation is evident, for, if not, then, when indicted for a minor offence, no plea of autre fois acquit, based on acquittal of the major., could stand the test. _ Eor example, suppose a man, indicted for a rape, pleads autrefois acquit for an attempt to commit the same. The answer based on this rule would be, “ that the testimony necessary to support the last indictment would not be sufficient to procure a conviction on the first, for evidence of the completion of the act is wanting.” This is repugnant to adjudicated cases, The State v. Shepherd, 7 Conn. R. 55; The Slate v:' Nichols, 8 Conn. R. 496; Roberts v. The State, 14 Ga. R. 8; Fiddler v. Tho State, 1 Humph. 508.
    Finally, discarding all rules and technical distinctions, let ns look at the question presented from a common-sense point of view. The defendant was indicted at the April term, 1860, of Carroll Circuit Court, for the murder of Valentine Ashley. He was arraigned, aúd he plead and was tried on that indictment. All was regular, and the State, on the testimony then given, claimed a verdict. That verdict was refused. But not to be so baffled, the State brings forward an indictment for the manslaughter of the same person, the penalty being the same as for the murder. No defect in the former indictment is alleged, no variance between the proof and the indictment is claimed. The facts in both cases are the same. The transaction, whether it amounts to murder or manslaughter, is a whole, is complete and indivisible, except by technical niceties and refinements, snch as the school-men might boast of. On the second trial the State brings forward the same witnesses produced on the first trial, and those same witnesses depose in the same words which they used on the first trial, and the .State claims, as it then did, a verdict.
    Here, then, we find the same defendant charged, in two different indictments, with killing the same person; the same evidence brought forward on both trials, and the defendant’s life in danger under both indictments. If these proceedings are legal, it will be in the power of the State, in every case of homicide, committed by a. slave on a white, to put the slave’s life twice in jeopardy, for identically the same acts, upon identically the same evidence. To attribute to our laws such a principle is to charge our State with having relapsed into that savage state which preceded the establishment of the common law.
    
      T. J. Wharton, attorney-general, for the State.
   Harris, J.,

delivered the opinion of the court:

The plaintiff in error was indicted in the Circuit Court of Carroll county for the murder of one Valentine Ashley, not alleging that he was a white man. Upon this indictment a verdict of guilty of •manslaughter was rendered, and upon the motion of the plaintiff in error this judgment was arrested, in the court below, upon the ground that the record did not show whether the offence found was the manslaughter of a slave, which is not a capital offence, or the manslaughter of a white man, which is punished capitally by our laws. The judgment was therefore arrested, indictment quashed, and the prisoner held to answer a new indictment.

At the next term of the court the prisoner was indicted for the manslaughter of Yalentine Ashley, a white man; and in his defence thereto relied on the plea of a former acquittal for the same offence, setting out specially all the proceedings had on the former trial. To these pleas the district attorney demurred, the demurrer was sustained, and a jury and verdict of guilty, and judgment.

The action of the court, in sustaining the demurrer to these pleas of a former acquittal, is the error assigned here.

Ordinarily, an acquittal on an indictment for a greater offence is a bar to a subsequent indictment for a minor offence included in the former, wherever, under the indictment for the greater offence, the defendant could have been convicted of the less. An acquittal oti an indictment for a minor offence is generally no bar to a subsequent indictment for the greater. Where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the' plea of former acquittal is generally a good bar.

To enable the party relying on the plea of former acquittal to avail himself of this defence, it must appear that he could have leen convicted under the first indictment for the offence charged in the second.

In the case before us, no conviction of manslaughter could have been legal under the first indictment. The indictment failing to show whether the deceased was a white man or a slave, the court could not know whatjudgment to pronounce. The manslaughter of a slave by a slave in our law is not a capital offence, while the manslaughter of a white man by a slave is made capital by statute.

The defendant was not in jeopardy for the offence with which he is now charged, and cannot avail himself of that defence.

Judgment affirmed.  