
    The State vs. Louis Bosse.
    One convicted under Statute 22 & 23 Oar. II. c. 7, of burning a bouse in tbe nigbt time, is entitled to bis clergy.
    When a new felony is created by statute, clergy is incident thereto unless expressly taken away.
    Where an English statute, made of force in this State, contains a provision that tbe felon may elect to be transported, it will be enforced as if there were no such provision in it.
    BEFORE WARDLAW, J., AT PICKENS, SPRING TERM, 1855.
    The report of Ms Plonor, the presiding Judge, is as follows:
    “ The prisoner was indicted under the Stat. 22 & 23, Oh’s. 2, for burning in the night time, the house of Corde Otten.
    “After the arraignment of the prisoner, and the announcement of his readiness for trial, I perceived that the counsel of the prisoner as well as the Solicitor, were proceeding under the assurance that the offence charged in the indictment was a clergyable felony; and with a view to prevent surprise, I expressed doubts which I entertained on that point, but said, that the question would properly come up after conviction, when benefit of clergy might be prayed, and that if — after argument —I should not then be of opinion, that clergy was allowed by the .Statute under which the indictment was framed, I would not venture to pronounce sentence of death without consulting my brethren. If the course I took has occasioned surprise, I regret it much; but I cannot see how the silence which I might have kept about my doubts, would have been more advantageous to the prisoner, than were my intimation of the extreme consequences that might be involved in the trial, and the stronger appeals which upon the assumption of such consequences, were addressed to the jury.
    
      “ The case made by the testimony was as follows:
    “The prisoner is tall, stout and middle aged; a German by birth, speaking English very imperfectly. He is a gardener, and is tolerably well educated, particularly in botany. He worked as a day laborer for about a year, next preceding this affair, on the Blue Ridge Railroad, in the neighborhood of Walhalla — a new settlement of Germans — but seemed to be little, if at all, acquainted with the people of that settlement, except Dr. Norman, whose patient he had been. There was no reason to suppose that he knew Corde Otten, or had any ill-will toward him. He was ordinarily quiet and peacable, civil and industrious, but was addicted to occasional drunkenness, and when in liquor was exalted, lively, excited, wild, seeming not to. know what he did.
    “A house in Walhalla was building for Corde Otten, between Biemann’s Hotel and Stucke’s residence, about two hundred yards from the former, and forty yards from the latter: its end was toward the street, and there was a piazza at one side: it was of two stories, with a kitchen of one story attached to the back end; in the lower story were a front room without a fire place, and a back room, between which and the kitchen a chimney had been completed, affording a fire place to each; the floors of the house had been laid, the walls and ceiling put up, and everything finished except the plastering, the doors, the sash, the columns, the handrails, and the banisters. The floors were covered with shavings.
    ■ “In the afternoon of Saturday, March 10th, 1855, the prisoner, with three other laborers, was in the store of Dr. Norman, where he had dealt before. He bought some tobacco and matches, being a smoker of the pipe. Pie was elevated or partially intoxicated, and had, a quart jug about half full of liquor.
    “That night, three young Germans, who lived at Walhalla, Bulwinkle, Calenberg, and Stucke, all unmarried, had been sitting without fire, (the weather being moderate) at Stucke’s; and when the first named two came out to go home about 11 o’clock, they observed an unusual light at Otten’s new house. They called Stucke, and all proceeded toward the house. They saw that the house was on fire, and that there was a man in it, who passed the windows of the back room, and was throwing his arms about, stooping and rising, as if stirring something, or lifting and carrying armfulls of something. Fearing that more than one man was in the house, Bulwinkle and Stucke ran to Biemann’s for help, Calenberg staying to watch. Calenberg saw that the fire was burning against the wall of the back room, on a different side from that where the chimney was ; that it had burnt through the floor and had fallen underneath, and that the man inside (who proved to be the prisoner) was throwing shavings upon the blaze; that when the blaze reached the .ceiling he came out into the piazza and looked into the back room through a window, then came out of the house into the street and toward Calenberg, who, fearing that he was armed, retreated backward, he following. Bulwinkle and Stucke returned, bringing Biemann and others with them; all excited, alarmed, and in a hurry. Bulwinkle seizing the prisoner, asked him why he set the house on fire ? The prisoner answered, “ I did not intend to burn it — I thought I was in the bush.” Bulwinkle asked where he got the fire, and he said that he had bought matches of Norman, and always carried them in his pocket. ^ # _
    “ The house was consumed, and the prisoner was retained, having made no attempt to escape. The witnesses who were examined said that in their anxiety and hurry they paid no attention to the prisoner’s condition, and could not say whether he was drunk or not.
    “After full argument of the case, I instructed the jury that the first and most material question (supposing the facts to be as stated) was, whether the burning had been accidental, that is without or contrary to any intention of the prisoner, as if it had proceeded from a spark out of his pipe, or from a match carelessly used without evil intention, or from fire kindled in the chimney and carelessly allowed to pass to the shavings, or from some involuntary act suggested in a drunken dream. But that if it should be found not to have been accidental, then the questions would be, was the prisoner so drunk as not to know what he was doing ? and if he was, could drunkenness excuse crime ? or rebut the inference of such malice as constituted an ingredient of the offence charged ?
    “ I held that drunkenness was not an excuse for crime; that the term maliciously, used in the statute, which created this offence, means with any evil intention; that where nothing to the contrary appears, the intention to do an act should be inferred from the act! and should be held evil if the act is evil; that if a drunken man was in no v*>rse condition than a sober one, he was not by the law put into a better one, but was a responsible being, to whom the same rules apply which in the same predicament would apply to the sober; and that if the prisoner, without accident and without any explanation besides drunkenness, applied a match to the shavings, and heaped shavings on the fire, with such volition and intention as a drunken man could exercise, it should be inferred that he wilfully and maliciously burned the house.
    “ When the jury, after a long absence, returned into court, the clerk asked, ‘ Gentlemen of the jury, have you agreed upon your verdict V The foreman nodded, and handed the record, from which the clerk ■ read aloud, ■ Guilty, but recommended to mercy. Mansel, Foreman.’ One of the prisoners counsel requested that the jury should be polled. I asked if he had any reason for doing so ? He answered that he had no reasons, but had suspicions. I was unwilling to countenance the practice of formally polling the jury whenever it might be requested, as a matter of course ; and I directed the clerk to proceed solemnly, according to the prescribed form of receiving a verdict in a ease of felony. He demanded anew, ‘ Gentlemen of the jury, have you agreed upon your verdict.’’ Then he read the verdict again, and turning to the jury, said, ‘ This is your verdict, so say ye all.’ I then spoke to the jury, and said, ‘ Now is the time, gentlemen, for any one of you to speak, if he is not agreed to this verdict.’ All remained silent, and I ordered the verdict to be recorded.”
    The prisoner appealed on the grounds:
    1. Because the counsel for the defendant having announced themselves ready for trial, were taken by surprise, when his Honor, the presiding Judge, announced it as his opinion, that the offence with which the prisoner was charged was a capital felony, not clergyable, and the prisoner being a foreigner, arid unable to communicate intelligibly with his counsel, they were unable to get information of evidence in his defence.
    2. Because his Honor, the presiding Judge, erred in announcing the offence of house burning under the English Statute of 22d and 23d, Charles II., made of force in this State, a capital felony not clergyable.
    3. Because his Honor erred in charging the jury, that the only material question of fact for them to decide, was, whether the firing of the house was accidental or not, as drunkenness was not admissible in any case, as a circumstance from which the jury might infer a want of malice or intention.
    4. Because his Honor also erred in charging the jury, that if the prisoner set fire to the shavings in the house (which was unfinished and unoccupied) with as much volition and intention as a drunken man could have, he was guilty.
    5. Because, when the jury came in, and the clerk demanded, “ have you agreed upon your verdict, gentlemen,” the foreman, without answering “ yes,” handed up the verdict, which being-read, the counsel for the defendant moved his Honor, the presiding Judge, to poll the jury, which he refused, but required the clerk again to read the verdict, and demand of the jury, “ Is this jour verdict, and do ye all so say ?” They all, including the foreman, remained silent, and did not answer yes, whereupon the Judge ordered the verdict to be recorded, the foreman never having answered “ yes.”
    6. Because the verdict of the jury was contrary to the law and evidence in the case, and as a conviction of a capital offence, not clergyable, is an extreme hardship.
    
      Orr, for appellant.
    
      Meed, Solicitor, contra.
   The opinion of the Court was delivered by

O’Neall, J.

The prisoner was indicted and convicted under the Statute 22 & 23 Car. 2, c. 7, for burning a house in the night time ; the punishment declared by it is, “ Every such offence shall be adjudged felony, and the offenders and every of them shall suffer as in case of felony.” 2 Stat. 521, § 2. The 3d section is a mere proviso, that no attainder for any of the offences made felony by virtue of this Act, shall make or work any corruption of blood, loss of dower, or disinheritance of heir or heirs. The 4th section provides, that “persons convicted of any the offences made felony by virtue of this Act as aforesaid, (to avoid judgment of death, or execution thereupon for such his offence,) shall make his election to be transported to any of his Majesty’s plantations;” and that judgment shall be given accordingly.

The question first made is, whether this Act, which was made of force in 1712, can now be enforced ? There is no doubt that the punishment of transportation cannot be enforced. In the State vs. Kirkpatrick, 2 Brev. 440, this circumstance was held not to be enough to defeat the operation of the statute. The same ruling was made in the State vs. Dunnavant, 3 Brev. 9; and in the State vs. Grarey, tried before me at Newberry, Fall of 1838. See note,.3 Brev. 9.

At the instance of the prisoner’s counsel, we have considered the question, whether clergy is taken away from this offenceThe well settled rule is, “ that when a statute makes a new felony, clergy is incident thereunto, unless it be specially taken away by Act of Parliament” in Great Britain, or of the Legislature in this State. 2 Hale’s, P. C., Chap. 45, p. 330. The same is repeated in Hawkins, Book 2, Chap. 83, § 24.

These authorities from the greatest masters of the Criminal Law, are decisive of the question. For this is a new felony created by statute, and clergy is not expressly taken away. The argument that it is taken away rests upon implication merely, arising from the provision substituting transportation for judgment of death. It might well be, even in England, that if the prisoner refused to make this election, the Court must allow the clergy under the plain principle, that this was a new statutory felony, and that from it clergy had not been taken away. In this State, however, there can be no difficulty. For the clause allowing an election of transportation cannot be at all enforced, and hence it is the same as if struck out of the statute. This leaves the offender, to be punished “as in case of felony,” and then there can be no doubt clergy must be allowed. The proviso in the 3d section cannot make the punishment any more. For the same is found in Stat. 1 Jas. 1, c. 11, (2 Stat. 508,) making bigamy a felony, and declaring the offender “shall suffer death, as in case of felony.” Under it the offender convict has been always allowed clergy.

In the State vs. Garey, who was convicted of killing a horse in the night time, under the Stat. 22 & 23 Car. 2, c. 7, I held in 1833, that the prisoner was entitled to his clergy. So in a case in Walterboro’, several years ago, where a prisoner was convicted of burning an out-house or stable having fodder in it, I held that the prisoner was entitled to clergy.

Eor burning a barn having corn in it, clergy is ousted by the ' Stat. of 28 Hen., 8, c. 1, (2 Stat. 459.)

In this case we are satisfied that the prisoner is entitled to his clergy.

The prisoner’s counsel requested, that if we, should obtain this conclusion his motion for a new trial might .be dismissed; it is accordingly so ordered, and the prisoner is adjudged guilty of a clergyable felony, and for that judgment will be awarded.

Wardlaw, WITHERS, Whitner, Glover and Munro, JJ., concurred.  