
    The State vs. Starling Clayton and Martin Carter.
    
      Venire Facias — Grand Jury — Petit Jury — Practice— Constitutional Laiv — Negro Stealing — Indictment— Evidence — Confession.
    A venire facias to summon a jury is good, although the sheriff has not endorsed on it the fact of entry in his office.
    A grand jury need not consist of more than twelve members.
    The 97th rule of Court, prescribing a new mode of impanneling a petit jury, is not unconstitutional.
    Two or more may be jointly indicted for negro stealing, and one may be convicted and the others acquitted.
    In a joint indictment, one may be charged with inveigling, stealing and carrying away a slave, and another, or others, with hiring, aiding or counselling him to do so.
    Confessions of prisoners in custody, held admissible.
    Irrelevant and immaterial questions to a witness, held properly rejected.
    One may be guilty of stealing a runaway slave.
    BEFORE MUNRO, J., AT BARNWELL, FALL TERM, 1858.
    The prisoners were indicted, in one count, for inveigling, stealing and carrying away a negro slave, named Gilbert, the property of Margaret Hays; and, in another count, for aiding Gilbert in running away and départing from the service of his owner.
    The report of his Honor, the presiding Judge, is as follows:
    “ The defendants were jointly indicted, under the Act of 1754, for inveigling, stealing and carrying away a man slave, named Gilbert, the property of Mrs. Margaret Hays.
    
      “ The testimony as touching the defendant Carter’s participation in the offence, was as follows: Charles A. Calhoun testified that he was the conductor of the night passenger train between Charleston and Augusta, and that on tbe nigbt of the 1st October last, between the hours of twelve and one, the train reached the Midway station, distant about seventy-two miles from Charleston ; while at Midway, Carter entered the cars in company with a negro man; they took seats opposite to each other, in the negro or conductor’s car, as it is termed; witness inquired of Carter where he was going : he replied to Charleston ; witness then asked him if he paid the fare of the negro; he replied, “ I dowitness then told him the fare of himself and negro-was four dollars and thirty-five cents; Carter handed him a twenty-dollar bill, out of which witness took the fare of himself and the negro, and returned to him the change; witness then ordered tbe train •to start, and proceeded slowly for about fifty yards, when Carter was arrested by Bamburg, Hays and Rice. It was at the request of these last-named persons that witness ordered the train to stop ; after Carter’s arrest, Bamburg remarked to him that it was a bad affair he was concerned in; to which the former replied : • “ I am as innocent of it as you are;” witness then offered to return to Carter the fqur dollars and thirty-five cents, which he had paid for his own and the negro’s fare; he refused to receive it, at the same time denying that he had ever paid witness for the fare of the negro; .witness then handed the money to one of the party who had him in .custody, and they all left the cars; Bamburg, Hays, Rice and Harvey, took the cars at Bamburg’s; the three first mentioned were in the conductor’s room when Carter and the negro came on the cars.
    “ J. Harvey has resided at Bamburg for the last twenty months, and knows the prisoner; on Tuesday night, the 1st of October inst., took the cars at Bamburg for Midway, and while at Midway saw Carter enter the cars in company with a slave named Gilbert, belonging to Mrs. Hays; they entered the conductor’s car and took seats, the negro facing Carter; witness was in a seat-immediately opposite the one occupied by Garter and tbe negro; no obstruction-was between them; witness bad on an overcoat wbicb he had pulled up as high as he could, and had pulled his hat as low down as he could in order to conceal himself; Calhoun, the conductor, approached Carter, inquired where he was going, and demanded his fare; Mr. Carter replied, “I am going to Charleston;” conductor then inquired if he also paid the fare of the negro; .then Carter replied, “I do;” Carter inquired of conductor the amount of his and the boy’s fare; the latter replied that it was four dollars and thirty-five cents ; Carter then handed the conductor a bill, the latter handed him back some bills, upon which Carter remarked, 111 owe you. thirty-five cents,” and handed him back some change; the conductor then stepped back and ordered the boy, Charley, to ring the bell for the cars to proceed; about this time Carter rose from his seat and told Gilbert to remain where he was, that he, Carter, had some business in the back part of the cars, but that he would return immediately; as Carter started to go into the back part of the.train, witness told Bamburg, who was then in conductor’s room, which is in the centre of the car, that Carter had left the car; Bamburg followed him, and the next that witness saw of Carter, after the cars had proceeded for some distance, he was brought into the car in custody of , Bamburg, Hays and Bice; Gilbert made an effort to escape, when witness seized him. The conductor offered to return back to Carter the money he had paid for his own and the negro’s fare; Carter denied having paid him the negro’s fare, and declined receiving it; witness, Bamburg, Hays and Bice, took the cars at Bamburg; witness expected to see Gilbert at Midway, and witness’ object in going there was to rescue . him from the possession of any one who might have him.
    “ The substance of the testimony, as bearing upon the defendant Clayton’s participation in the affair, is as follows:
    “ J. Harvey, said he knew Clayton, having frequently seen him at Bamburg, and on the night above referred to, and during tlie time the cars stopped at Midway, witness being seated on the side of the cars next to the depot, at about fifteen minutes past twelve in the night, he saw the defendant, Clayton, standing within about four feet of the cars, and nearly opposite to where he was; there was a fire at the depot, and was also moonlight; Clayton did not enter the cars ; on his cross-examination he said he saw a human form standing in the position above described, which, to the best of his knowledge, was Starling Clayton.
    “ Hansford D. Stewart testified,' that on Friday night, the 1st of October, between the hours of eight and nine o’clock, himself and J. Gr. Jones went to Carroll’s saw mill, which is about three-four.ths of a mile from 'Midway; they seated themselves under the slide, and after being there some short time, two persons rode up on horseback; shortly after their arrival some one whistled; they walked to within about fifteen paces of where witness and Jones were concealed, when one of them, whose voice witness recognized to be that of Starling Clayton, said, “ All I could borrow was one dollar the other, whose voice witness could not recognize, responded, “ That is a good manafter remaining at the mill for about a half hour, they rode off in the direction of Midway ; the passenger train had not then arrived; after they left, witness and Jones came out from under the slide and walked towards Midway, and while on their way to that place, and after the passenger train had passed, they met two men on horseback, returning from that place; they were going at half speed; and as they passed where witness and Jones were, one of them, whose voice witness did not recognize, said, “ Keep on this side of the road.” He thpught it the voice of Clayton.
    “ The testimony of J. Gr. Jones was substantially the same as that of Stewart.
    “ Dr. Moses West next said, that he lives about three hundred yards from Clayton; he went over to Clayton’s — inquired for him, and found he was not at home; next day witness saw bim at John Berry’s; be was then in custody; witness remarked to bim, tbat be was sorry to see bim in tbat situation — to which be replied, ‘ Ah, Doc., I would not have been in this fix if I bad not been persuaded into it; they have been persuading me to get into it for about two years.’ To this declaration no exception was taken.
    “ Gabriel G. Miller said, tbat while Blicbinton, a constable, and one Kirkland, were carrying Clayton to Squire McMul-lan’s, witness overtook them on the road; as witness came up, Kirkland asked Clayton to repeat over to witness what be bad been telling Blichinton and himself. The answer of Clayton was objected to on the ground that it was not voluntary — the objections were overruled — and the response of Clayton was as follows: ‘I have never carried off a negro; Martin Carter carried off the negroes; all I did was to go to the railroad and fetch back the horses; for one of the negroes sold by Carter I received one hundred dollars; and for another I received one hundred and fifty dollars.’
    
      “ Upon another occasion, when Clayton was at Berry’s, on his way to McMullan’s, Clayton asked witness to step aside with him; one John D. Grymes accompanied them a few paces from the crowd; Clayton asked witness if he thought there was anychance for him to turn State’s evidence in this case ; witness replied he did not think there was — that there was too much evidence against him ; if there was not so much evidence against him, there might be a chance. Clayton then said, ‘ If it had not been for Martin Carter I would not have been in this fix.’
    “ These declarations by the prisoner were objected to on the same ground as were the former made to this witness, and were also overruled.
    
      “ This witness said he was not on friendly terms with Clayton.
    “ John D. Grymes — Overheard the conversation between Miller and Clayton, and thought it substantial as Miller had done.
    
      
      “Martin Kinard. — Visited Clayton the first day of bis confinement in prison.
    “ Olayton asked witness bow be tbongbt it would go witb bim. Witness-replied, he did not know.; Clayton then said, ‘If I bad not been persuaded into it, I would not have been in this fix; -for the sake of lucre or money, see what I am now.’
    
      “ B. O. McMullan. — Witness is the magistrate who committed Clayton; witness accompanied Kinard on the occasion of his visit to the jail to see Clayton; witness cautioned him to make no confession to witness; after his caution, however, Clayton asked witness what he thought it would do with him; witness replied, he thought it would hang him; Clayton then said, ‘ If I had not been persuaded into it, I would not have been here — it is money (or lucre) that has caused me to be where I am.’ These confessions were not objected to.
    
      “ Klijah Oarter. — Ineompetency of this witness was objected to by his counsel, on the ground that there was a prosecution pending against him for the same offence; the objection was . overruled. This witness said, that he is the father of Martin Oarter, and father-in-law of Clayton; that on Friday night, three weeks ago, Clayton came to his house after dark; said he wanted his son Martin to go iyith him and help catch a runaway negro that had been out eight years; witness’s son declined going, on the ground that he was .poorly, and had washed his feet’to go to bed; Clayton said, if he would go they would catch the negro, and if Martin would carry him and deposit him in the guard-house in Charleston, he, Clayton, would go to Charleston, get the reward, and give Martin one hundred dollars. Eventually Clayton persuaded Martin to go, and they went off together; witness said, before Olayton and his.son left the house, one of them looked at the watch, and said it was after ten o’clock.
    “ Wm. D. Allen. — Witness lives in the neighborhood of Clayton and Carter — on Friday evening, the 1st of October, before sun-down, saw them together — they were talking together behind Clayton’s corn-house; no one was near them; there was another man standing at some distance from them; the corn-house is near the road, and they might have been seen passing along the road; witness was in that position when he saw them.
    “ Mr. Bellinger proposed to propound the following questions to Calhoun, the conductor, which are referred to in the fourth groñnd of appeal. They were objected to by the solicitor, and the objection was sustained:
    
      “ 1. Whether he had been informed that a negro would be at Midway that night to be caught ?
    “ 2. Whether he was not so informed by one of the party who got in at Bamburg, or Graham’s ?
    3. Whether íd approaching Midway, in the cars, he did not expect to find a negro at Midway ?
    “In reference to the sixth ground, there was not the slightest proof that the slave was a runaway, unless an inference to that effect may have been drawn from the testimony of Elijah Carter. On this point, however, I did say to the jury that it was somewhat surprising that Carter should have been carrying a runaway slave to Charleston during the prevalence of an epidemic, when he could much more conveniently have been lodged in the Barnwell jail; and still more surprising that when arrested in the cars, instead of claiming him as a captured runaway, he should have disclaimed all knowledge of him. But conceding the slave to have been a runaway, I could not well perceive how that could lessen the guilt of the prisoners. The answer to the seventh ground will be found in the 97th rule of Court, and the case of the State vs. Boatwright, 10 Bich. 407.
    “ Both prisoners were convicted.”
    The prisoners appealed, and now moved this Court for a new trial on the grounds :
    
      1. Because the defendants were jointly indicted, and there was no sufficient proof to sustain such indictment; and his Honor erred in charging the jury that either prisoner might be found guilty; whereas, (it is submitted,) his Honor should have charged the jury that, if either prisoner was innocent, or if one of them had only aided in carrying away the slave, a verdict of not' guilty ought to be rendered.
    2. Because if there was proof of guilt against? Clayton, it was only for aiding another in committing an offence charged, and there was no such charge in the indictment, nor was there sufficient proof of such a charge, if it had been made.
    8. Because his Honor erred in admitting confessions of the prisoner Clayton.
    4. Because his Honor erred in excluding certain questions as asked.
    5. Because there was no sufficient proof of the guilt of the prisoners, or either of them.
    6. Because his Honor erred in charging the jury that it made no difference whether the negro was a runaway or not; ■ whereas it is submitted that it should have been left to the jury to decide whether the negro was taken under the belief that.he was a runaway.
    7. Because the jury were impannelled by lot instead of calling the juries numbered one and two, according to the practice existing prior to 1856.
    They also moved in arrest of judgment, or for a new trial, or to quash the proceedings, (as may be necessary and proper,) on the grounds:
    
      1. Because tbe writs of venire (under which the grand and petty juries were summoned to the Court at which the defendants were tried) were never entered in the sheriff’s office, either before or since the trial.
    2. Because the indictment on which the defendants were arraigned and tried, was found a “ true bill” by a grand jury composed of only twelve persons.
    
      Bellinger and Hutson, for appellants.
    
      Owens, Solicitor, contra.
   The opinion of the Court was delivered by

Withers, J.

Every phase of this case exhibited by the brief or presented by the argument, has received the examination of this Court, and its judgment and the grounds, upon which it rests, are now to be announced.

We advert first to the grounds that are taken in arrest of judgment; and they relate to the venire for the grand jury as well as that for the petit jury, and to the number, thirteen7, who were sworn of the grand jury that found the bill.

The objection to the venires is, that the sheriff has not endorsed upon them the fact of entry in his office, and it is insisted, that, therefore, they are not legal process and are void.

The sixth section of the sheriff’s Act directs the sheriff to keep a “ writ book,” into which he shall “make an entry,”— “ with the date, and endorse on the original the time of such entry in his office,” many kinds of process, mentioned in that section by name, among which a venire facias does not appear) and could be included under none that are specified unless under the word “ summons,” or the words “ any other mesne process whatever issuing from either of the Courts of Ordinary ^ Law, or Equity.”

To regard tbe omission of tbe sheriff to comply with wbat is merely directory, in respect to such entry or endorsement, as rendering tbe process void, and thus upset all proceedings under it, would be to disregard a clear and well-recognized legal distinction, and work irreparable and wide-spread mischief to tbe public and to individuals. Though a venire is judicial process, and all such process is required to be authenticated by the seal of the Court, yet it is but a precept to the sheriff to summon into Court the jurors drawn; and having answered that purpose, it has effected its object, and cannot be assailed though not issued or returned within the time prescribed by the legislation of 1839, and though the device of the. seal be not legible upon its face — vide The State vs. McElmurray, 3 Strob. 33. Surely if this process or precept be beyond the reach of such objections, it may withstand those now urged against it. Even the omission to observe the requirement of the Act of 1799, directing new jury lists every three years, affords the prisoner no ground of objection to the array or of challenge to the polls — vide State vs. Baldwin & Massey, 2 Hill, 379. None can doubt that a general distinction between neglect by ministerial officers of statutory regulations that shall be put to the account of mere irregularity not affecting substantial justice, as also a distinction between objections available at the time of trial, sometimes curable then, and for that reason unavailing afterwards, are indispensable to the course of justice as administered by Courts, and to the stability and finality of their judgments.

It is objected, moreover, that the jury which found the bill was not a lawful grand jury because thirteen, of which number it consisted, were not enough. Our investigation of this point leads to the conclusion that twelve would be a sufficient number. Blackstone in 4 Com. 302, speaking of the panel of grand'jurors, says, “as many as appear on the panel are sworn upon the grand jury, to the amount of twelve at the least, and not more than twenty-three, that twelve may be a majority, which number, as well as the constitution itself, we find exactly described so early as the laws of King Ethelred. Exeant séniores duodecim ihani,” &c. In 2 Hale, P. C. 151, is this language, “ In all criminal causes the most regular and safe way, and most consonant to Magna Charta, 5 Ed. 3, ch. 9, &c., is by presentment or indictment of twelve sworn men.” (That great judge was understood to have littlb favor for prosecutions by information, so often an engine of oppression in tyrannical reigns and our constitution has ratified his sentiments in that respect.) At page 161, he says, "if there be thirteen, or more, of the grand inquest, a presentment by less than twelve ought not to be, but if there be twelve assenting, though some of the rest of their number dissent, it is a good presentment, for if twelve agree it is not necessary for the rest to agree.” Says Mr. Chitty, 1 Crim. Law, 306, " the grand jury must consist of twelve at the least.” Hawkins concurs with the above authorities — vide Bk. 2 ch. 25, sec. 16. In Com. Dig. “ Indictment A.” it is said, an indictment is an accusation, “found by a proper jury of twelve men,” meaning by “proper,” no doubt, men of the proper qualifications, and resident in the county or other prescribed jurisdiction of the Court. But a jury of twelve men is recognised as a complete one. The reason of the rule, very ancient as we have found it to be, requiring twelve jurors, at the least, to concur in sending any man for trial before the petit jury of the sessions, is, by the concurrence of all writers upon the subject, that he shall not suffer in that jurisdiction without the assent of twenty-four jurors, affirming his guilt. Now, this object is secured as well by accepting a grand jury of twelve only, as of any greater number; and if there be no more than twelve, the more likely is the prisoner or'accused to escape trial altogether. The idea that more than twelve must be sworn may have been encouraged by the requisition that such number, “at the least,” must concur; by the circumstance, that a greater number than twenty-four, has sometimes been required to be summoned, for with us thirty were at one time to be drawn and served ; by the observation of Mr. Cbitty, 1 Crim. Law, 312, that “it is not unusual, in practice, after fifteen or sixteen have been called, to consider the inquest as complete, and not to insist upon the service of the rest who may be in attendanceby the custom of the prosecution in desiring more than twelve to be impannelled to increase the probability.of securing an indictment; and lastly, by an inattentive reading of what Coke says at page 30, 3 Inst, as follows: “ No peer of the realm or any other subject, shall be convicted by verdict, but the said offences must be' found by above four-and-twenty, to wit, by twelve, or above, at his indictment, or by twelve peers, or above, if he be noble; and by twelve, and not above, if he^be under the degree of nobility.” Instead of “above four-and-twenty” the author manifestly meant, “ said offences must be found by four-and-twenty, or above,” that is at least four-and-twenty for a commoner, for his petit jury could comprise no more than twelve, but the peer might have a j ury for trial far above four-and-twenty, and the effort was to state the rule, in the same sentence, for both classes. Prom what source soever the conception arose that produced this ground of appeal, there seems to be no solid foundation for it in law, but very satisfactory reason and authority to hold a grand jury of thirteen members a lawful panel to indict. A remark may be here permitted, though not called for by this case,, touching the received opinion, that the maximum num-number is twenty-three grand jurymen. So late as 1837, it was affirmed by eminent English counsel, and it was not disproved on the occasion, that there was no judicial authority for this rule; that nothing could be cited for it but a dictum of Lord Mansfield, to be found in 2 Burr. 1088, which was styled, “rather an anecdote than a judicial decision.” But Lord Denman said, (Rex vs. Marsh, 6 Adol. & Ellis, 33; Eng. Com. Law. 66,) “ tbe Court bas no doubt the limited number is twenty-three. It is a matter of practice proved by authorities in the only way in which proof can be given of a point of that kind which has been undisputed.”

To the objection founded upon the surmise, that the late rule of Court (the 97th,) is unconstitutional, because it prescribes a mode of organizing a petit jury when produced to a prisoner for challenge, different from that which had before prevailed, we need only say, we are satisfied with the cases of Cregier vs. Burton, 2 Strob. 487, and State vs. Boatwright, 10 Rich. 407, and deem it unnecessary to add any thing of argument to what may be found in them.

The first ground of appeal for a new trial alleges,' that inasmuch as the prisoners were jointly indicted, and were tried upon the count charging that they did inveigle, steal and carry away the negro, and the evidence showed that one of them only hired, aided, or counselled the other to do the thing charged, the jury should have been instructed to render a general verdict of acquittal, whereas the instruction was, that either of the two might be convicted and the other acquitted, according as the evidence might implicate the one and not the other in the specific charge laid.

.We cannot perceive any foundation in reason or authority, or any warrant in practice or principle, to maintain such position. This is not a case in which confederacy or combination is necessary to. constitute the crime. One or several may be guilty. So many as the proof may implicate in the offence charged are guilty, and if a dozen were charged .and .the evidence pointed to one only, why should he not be convicted and the others acquitted, as in assault and battery or murder, as to which last there never has been doubt? Eor robbery or burglary parties may be indicted jointly or separately, 2 Hale 173, and though they have acted separately, yet if the grievance is the result of the acts of all jointly, all may be indicted jointly for the offence, Arch. Or. PI. 59. The argu-. ment is, that the statute ordains three distinct offences, to wit: 1. To inveigle, steal and carry away a slave: 2. To hire, aid or counsel another to do it: 8. To aid such slave in running away; that these prisoners were tried and convicted upon the first; that Clayton was shown to be guilty (if of any thing) only of the second offence ; and yet that conviction or acquittal upon this indictment could not be pleaded hereafter in bar of a prosecution for the offence of hiring, aiding and counselling. Let this be granted, and still it is obvious that such result does not follow from the fact that the parties are jointly indicted and the proof insufficient to convict both; but it would result from the fact, that the offence, supposed to be subsequently charged, was not that charged and tried upon this occasion; and the very same consequence would follow, whether the prisoners be indicted and tried separately or jointly. If there be validity in this objection, it would seem to go to the indictment itself, and contest the right to indict jointly, at all, under the statute.

It is deemed to be a suitable occasion to observe that since the case of State vs. McCoy, 2 Spear, 711, there seems no objection to an indictment under the Act of 1754 of one, as inveigling, stealing and carrying away a slave, and another, or others, as hiring, aiding or counselling that offence; just as in the case of principal and accessory in murder. The words of the Act make it manifest that two or more may bear the same relation to the crime, created by the Act, and to each other, that they may as to capital felonies at common law.

The second ground for a new trial complains that there was not proof sufficient to show Clayton guilty of inveigling, stealing and carrjdng away the slave; that the evidence as to him, indicated only aiding and abetting Carter, and was inconclusive upon even that form of guilt. This has led us to examine the facts reported, and we find evidence enough, if credible, (and it has been believed by the jury,) to show, that tbe two prisionera were in concert on tbe same evening of tbe asportavit by Carter, in an enterprise pretended to be directed towards some inveterate runaway slave, yet ending in tbe possession and asportavit by Carter of Gilbert, tbe slave of Mrs. Hays, wbo was not runaway, wbo was in tbeir neighborhood, wbo must have been well known to them, according to all probability; that Carter’s guilt is proved beyond all reasonable question; that Clayton’s admissions (those not objected to) show a guilty participation with Carter; that when Carter entered tbe cars with Gilbert, Clayton was within four feet of them near a fire; that, as one witness believed, be soon after beard Clayton’s voice as be proceeded on horseback along tbe road from the railroad station; that Clayton admitted be rendered the service of carrying the horses back; all which combined does constitute evidence enough to justify the jury, in our deliberate opinion, in placing Carter and Clayton in tbe same category.

The question raised upon the admission of confessions cannot be better disposed of than by referring to our series of cases, Crank's, Kirby's, Vaigneur's and Gossett's which are too conclusive in favor of the ruling on circuit upon this point to warrant any additional observations.

Any answer that Calhoun could have made to the three' questions proposed for him and excluded would be liable to the double objection, that they would but disclose hearsay if of any avail at all, and otherwise would have been wholly immaterial. If every one of them had been answered as the counsel desired, in the affirmative, it is not perceived what influence they ought to have had upon the question before ■the jury.

The case of the State vs. Miles, 2 N. & McC. 1, is a full answer to the matter of the 6th ground taken for a new trial. The jury have found Carter guilty of stealing the .negro, and the case cited shows that it was quite immaterial whether he thought he was stealing a runaway or not. There does not appear to us, however, any reason to suppose that Carter was in the least mistaken on the subject.

This Court is constrained to dismiss the motions in this case in behalf of the prisoners, and it is ordered accordingly.

O’Neall, Wardlaw, Whitner, Glover andMuNRo, JJ., concurred.

Motions dismissed.  