
    The State v. Mason Scott.
    From Wake.
    A person called as a Juror in a capital case, said on oath, that he had not formed nor expressed an opinion respecting the guilt or innocence of the prisoner; and, after the verdict, it was proved that he had declared, a few minutes before to a third person, “that he could not “ serve, because he had made up his opinionwhich was unknown to the prisoner at the time he accepted the Juror.
    Held, that there shall not be a new trial — first, because such declaration was not on oath; and, secondly, because it is contradicted by the Juror on oath.
    If the insanity of a Juror be alleged as a reason for a new trial, being a disqualification so easily perceptible from its nature, it must be proved by clear and full evidence.
    The declarations of a party cannot be offered in evidence on his behalf in any case, unless they accompany acts, and be pars res gesta, and are offered as such. They are not admissible even to shew the insanity of a prisoner.
    Held, therefore, where a prisoner had committed homicide at 10 o’clock at night of one day, that evidence of what he said the next morning could not be received to prove his derangement.
    The property in a slave is not of the essence of the offence of the murder of him, and it is immaterial whether it be laid in the indictment or not: Hence it need not be proved upon the trial as laid. Quere — If the property be proved to be different from that laid ?
    If a statute take away clergy from any offence, and another statute, either prior or subsequent, create that offence by its known, legal, and technical name, all the qualities of its name will attach to it: Hence it will stand ousted of clergy.
    The statute 23 Hen. 8. c. 1. ousted murder of clergy: Our act of 1817, c. 18 gives to a slave the character of a human being, and places him within the peace of the state, so far as regards his life:
    Hence it is held, that one, convicted of wilfully killing a slave with malice prepense, is guilty of murder, and not entitled to the benefit of clergy.
    The prisoner was indicted, tried and convicted at the Superior Court for Wake, at April Term, 1820, before 
      Faxton, Judge. lio was charged with the murder of “ a nc- “ gro mail slave, Caleb, the property of Frederick S. Mar- “ shall and the indictment concluded “ contrary to the , . “ form of an act of the General Assembly, and against the “ peace and dignity of the state.”
    The prisoner was allowed to ask the Jurors upon oath, as they were called to the book, whether they had expressed or formed an opinion unfavorable to him ? One Daniel Peck, being called, was thus interrogated, and replied that he had not formed nor expressed any opinion respecting the guilt or innocence of . the prisoner, — and he was then elected and sworn bn the Jury. The deceased was slain with a dagger about ten o’clock at night. One ground of defence, taken on behalf of the prisoner, was, that he, the prisoner, was insane at the time — To prove the truth whereof, his counsel offered to give in .evidence his own declarations, in connection with his conduct, the next morning after the homicide, to be considered by the Jury in connection with his conduct before the homicide,, and on the same night and within a few minutes of the time of giving the stroke. But the Court rejected'the evidence of the declarations and conversation of the prisoner on the morning succeeding the homicide. -
    For the purpose of shewing the deceased to be the property of F. S. Marshall, the Morney-General called a witness, who proved that he had long known Caleb; that ho had formerly belonged to one S. Marshall, and continued to be his property until he died, several years ago, leaving an only child, who is the said F. S. Marshall, a minor. The prisoner’s counsel moved the Court to instruct the Jury, that the evidence did not sufficiently prove the property as laid in the indictment: But the Court refused to give the instructions as prayed for, and, on the other hand, instructed the Jury, that the evidence, if believed, was sufficient.
    After the verdict, a new7 trial was moved for upon the four grounds following:
    
      First. That the Juror Feck had made up an opinion against the Prisoner before ho was sworn 5 Secondly. That the same Juror was insane, and without , _ T capacity to be a Juror ;
    Thirdly. Because proper evidence oifered on behalf of the Prisoner had been rejected;
    
    Fourthly. For misdirection of the Court, upon the proof of the title of the deceased.
    The first reason was supported by the affidavit of a person, who swore that he was standing near to Peck, when he was called as a Juror, and that he asked him if lie meant to serve on the Jury ; to which ho replied, “ no, I cannot, for I have made up my opinion,” and that in a few minutes he was sworn, and took bis seat in the Jury. The second reason was also supported by two affidavits: the one made by a Physician, who swore, that twelve months before that time, Peck had been deranged by intemperance | that ho had seen him within the week of the trial intoxicated, and, from that circumstance, thought it probable that his mind was deranged ; the other made by a Mechanic, who swore, that Peck came to his shop before breakfast on the day of the trial, and his conduct was so strange, and his expressions so absurd, that he believed him to be deranged. The Court overruled the motion. The prisoner then prayed the benefit of clergy; but the Court refused to allow it, and passed sentence of death on him 1 and he appealed to this Court.
    The case was argued by the MLorney-General for the State, and by Seauoell and Manly for the Prisoner.
    
      Manly.
    
    He relied upon the affidavits to show that the two first reasons were founded in fact, and no affidavits had been offered by the State to 'contradict them. If Peck’s derangement had been known, or his declaration that he had made up his mind, it would have been a good cause of challenge. The prisoner did not, and could not in the nature'of tilings, know those facts.. And this ni!e is laid down, that whatever forms a good cause of principal challenge, if known, is sufficient to set! aside the ver-diet, if not known in due time to challenge. Upon the third point he contended, that the evidence was competent. From the nature of the fact to be proved, it is necessarily so. The conversations of a person ought to be submitted to the Jury as facts, from whicji they may infer that he is or is not non compos; because rational or irrational opinions, connected conversations, or idle talk, are the strongest proofs, indeed the very tests of sanity or insanity j and the Jury are the proper judges of that, and the declarations being made the next morning, makes no difference. The property ought to have been proved, as laid. In cases of larceny, it is necessary-to enable the accused to plead one acquittal or conviction, in bar of another prosecution. The same reason holds here, in order to identify the deceased. The case of Davis, shews that the property must be truly laid. But at-, all events, the prisoner is entitled to the benefit of clergy. The statute 1817, c. 18,'enacts, ii that the killing of a slave shall be denominated and considered homicide, and shall partake of the same degree of guilt, as homicide’does at Common Law.” And at the Common Law, homicide was clcrgia-ble.
    Taylor, Chief-Jus tice. — That is not doubted : all felonies were clergiable at the Common Law •, that is, all who could read were burnt in the hand. The question is, whether murder has not been ousted of clergy.
    
      The Attorney -General, on the other side,
    
    The affidavits do not shewT that Peck said his mind was made up unfavorably to the prisoner ■, and the oath of.Peck, when called to the book, expressly contradicts it. As to iiis insanity, the proof is too weak: one witness saw him out of his head from drunkenness a year before, and knows nothing of him since; and it does not appear that the other witness had any acquaintance whatever with him. The evidence was properly rejected. It is a rule, which has no exception, that a man’s own declarations shall never be evidence for him, unless they accompany acts that are evidence, and form part of the res gestee. The Court was divided in Fries's case; and the rule is laid down too broad there. Where a Juror said he was a freeholder, when he ivas not, the verdict was not set aside, though it would have been cause of challenge, if known.
    
    There have been many legislative regulations to guard the persons and lives of slaves. After many fruitless attempts, the act of 1801, c. 21, at length inflicted the punishment of death, without benefit of clergy, upon any person convicted of feloniously, wilfully and maliciously killing a slave. The murder of a slave, therefore, has been, ever since ousted of clergy, and this indictment is founded upon that statute. The act of 1817", c. 18, does not alter the rule, as regards murder' — that was not the design of the act. After the act of 1801, serious doubts were entertained whether the slayer of a slave could be guilty of manslaughter, and some of the Judges decided that he could not. The scope of the act of 1817 was therefore to remedy that inconvenience: to constitute a negro a human being, and to give him farther protection, instead of lessening it, as contended for on the other side. It was to graduate the act of killing a slave into murder, manslaughter and excuseable homicide. Murder had already been provided for, and expressly ousted of clergy. The two acts can thus stand together, and are not contradictory to eacli other.
    It is immaterial in whom the property is. laid, or whether it be proved as laid. It does not constitute a part of the offence, and, therefore, need not be stated nor proved. It is like the case of Pye,
      
       who was charged-Wvith robbing from the person near the highway, or in such a house, when it was held that it was unnecessary to prove the place or the property of the house, when the robbery was committed.
    
      Seawell replied for the prisoner.-
    He is entitled to clergy. The indictment is in the common form, but concludes against the form of the statute. The Attorney-General now says, ore teams, that it is predicated upon the st. 1801, c. 21. But the time laid in the indictment is subsequent to the passage of st. 1817, c. 18, and the fact was committed subsequently. The latter' act embraces this case. The title of it is, “ An act to punish the wilful “ and malicious killing of slavesand covers, therefore, every felonious killing. It is obvious, that the object was both to define the offence and to prescribe the punishment. The act is very lamely drawn, and being darkly expressed, points out no one object in the body of it plainly. It is sufficient, however, for the prisoner, that- it constitutes and denominates.the slaying of a slave, Homicide at Common Law, and is inconsistent with st. 1801, c. 21. What is homicide? It is the killing of a human, being, and is of three kinds: felonious, excusable and justifiable. The last has no share of guilt; the second very little; and the third, being again divided into murder and manslaughter, is the object of punishment. And if .this act of 1817 stood alone, it is clear that clergy would not be taken away; because it is not so expressed in the act. All felons are entitled to clergy, unless expressly taken away by the statute ; and no general words in a statute will oust it. So it was likewise under our act- 1790, c. 11, against bigamy — the deficiency was supplied by st. 1809, c. 26, which was drawn by Mr. Archibald Henderson. Suppose the words of the act of 1817 had been “ shall be con- 
      « ffidered and denominated felony,” it would necessarily follow that it was clergiable; and so it is with every species of homicide “ at Common Law.” These last words, as well as every other word in a statute, must be retained, and have a meaning given to them in the construction ; and they must affect the punishment — they can mean nothing else. If they do not apply to the punishment, the act would mean the same if the words were stricken out. The act of 1801 takes away clergy, and thereby placed the offence on a different footing from that on which it stood at Common Law. That of 1817 has its operation by restoring the Common Law, and is therein inconsistent with and repeals the former. It is no objection that the latter embraces more than the former: if it provide for all and dispose of all that is in the first, it is sufficient. At all events, if st. 1801 be not repealed by the other, the indictment ought to have concluded “ contra formam sta- “ tutorum.”
    
    He also contended very strenuously that the property was not proved, and ought to have been proved as laid. The title was shewn to have been in S. Marshall; he was dead ; it did not appear that he had any personal representative; and F. S. Marshall is only his son, which gives him no property in the slave. It was not even proved that he ever had the possession. Whenever a fact is laid as a part of the description of the offence, it must be proved as laid; and so of-the description of the person, the subject of the offence. Who is the subject of the offence? Ji slave. What slave ? Caleb, the property of F. S. Marshall. We may as well dispense with proof that the de- • ceased was named Caleb, as that he was the property of F. S. M.; and surely the prisoner could not have been convicted without any proof upon either point. If there be no evidence necessary to prove the identity, an acquital here could not be pleaded in bar of an indictment for the murder of my Caleb; for as to all things descriptive of the particular offence, they must appear upon the face of the indictment upon a plea of auter/oits acquit; and an ac-quital of the murder of Marshall’s Caleb, is no more a bar to an indictment for the murder of my Caleb, than one for an assault on Marshall would be for an assault on me. Fife’s case has been cited on the other side. That was a proper decision; for it was robbery, let it be committed where it might," but it has no application to this case. The doctrine of immaterial averments has no connexion with this question. But the true rule even on them is, if the 'whole subject matter improperly described, or not proved as described, (which is the same thing,) can be stricken out and the indictment still remain perfect, the introduction of the matter shall not vitiate the indictment. Common sense would seem to say, that what was useless should not prejudice. That is the real rule: there may be dicta against it, but no judgment that I know of. If, liowever, there be, when cases and pñnáples conflict, there ought to be no hesitation in deciding which to respect. In Savage v. Smith,
      
       it was necessary to state only an execution ; but the pleader stated also a judgment, and it was held that he must produce it. So, where an indictment for conspiracy charged the unlawful combination, which per se constituted the offence, but went on also to state for what purpose the money was thus obtained by the conspirators, it was ruled that, therefore, it must be shewn in proof, and the Defendants were acquitted. To apply the rule here: strike out “ slave” altogether — I do not mean the name, but the fact of his being a slave at all — and the indictment would be fatally defective : for as a slave, as the property of some person, he is the subject of criminal homicide under the act of Assembly. Giving no other description but that the prisoner killed a human being called Caleb, would be entirely too lax, and wholly insufficient. An indictment must always state and describe with certainty the person upon whom the murder was committed, unless it be stated, that the person is to the Jurors unknown.
    
      
       3 Bac. Abr. Jury A. Co. Lit. 156.
    
    
      
       U. States v. Fries, 3 Dal. 515. Lady Herbert's case, 11 Mod. 119. Salk. 645.
    
    
      
       1 Hale, P. C. 32, 33.
      
    
    
      
       Id. 36.
    
    
      
       State v. Weaver, 2 Hayw. 54.
    
    
      
       2 Law Rep. 252.
    
    
      
      
         State v. Greenwood, 1 Hayw. 141. Kirby’s Rep. 427.
    
    
      
       2 East. C. L. 785.
    
    
      
       4 Bl. Com. 177.
    
    
      
       Id. 98.
    
    
      
       Kel. Rep. 104.
    
    
      
       2 W. Bl. Rep. 1101.
    
    
      
       2 Camp. Rep. 231.
    
   Henderson, Judge,

delivered the opinion of the Court:

After stating the facts and the questions as they appear upon the record, he said, the ground of the first reason for a new trial is not sufficiently proved. Ruth states, that Peck informed him that he had formed an opinion. When Peck said so, he was not on oatli; and when offered as a Juror, he denied it on oath. The second reason is in the same situation. It does not appear what was tiie state of Peck’s mind at the time he took his seat as a J uror. One of the witnesses speaks of his situation twelve months past; and, although he saw him drinking during the week of the trial, he does not pretend to say that his mind had actually become affected, but concludes that possibly if might. The affidavit of the other witness does not prove any thing; and both taken together, can scarcely raise a doubt, much less satisfy us, that the Juror was deranged when he was sworn on the Jury. The nature of the disqualification would render it perceptible to many of the numerous by-standers, who commonly surround a Court, and more full and satisfactory evidence of the fact, if true, should have been produced.

Were I left to myself, unshackled by adjudications, I must confess that I should be inclined to respect the third reason; but it is in vain for me to contend against precedents — I must submit to the law as I find it written, and my brothers entertain no doubt* of the correctness of the decisions upon principle. The declarations of the party, say they, cannot be offered in evidence in his behalf, unless they accompany acts. They then form part of the acts, and, as such, are heard. But, with due deference to these opinions, it appears to me, that a man’s acts are as much within his control as his words, and that both ought either to be received, or both rejected. Yet it is the daily practice to give the party’s acts in evidence for him. I do not contend, that the party’s declarations should be given in evidence for him to prove the truth of the facts declared or asserted by him 3 but only that the J ury should be at liberty to draw inferences from his having made such declarations.

The last reason is, that the Court refused to instruct the Jury as to the effect of the testimony, allowing it to be true, relative to the title of the slave Caleb. This is a demurrer to evidence ore terms. Observing that the evidence does not prove the property in the deceased to be otherwise than as laid, is it then a fatal defect, even if it be admitted that it does not prove the property to be as laid? ¥e think it is not. The ownership forms no part of the offence it is equally criminal to kill tiie slave of one person as of another. The prisoner is no further interested in having that stated, than for the sake of identity. We give no opinion upon a case, where it is proved that the property is in a different person from the one alleged in the indictment. Had the prisoner been acquitted by the Jury for this defect of proof, there can be no doubt but that on a second indictment for killing the same slave Caleb, charging him to be the property of some other person than F. S. Marshall, he could safely rely on a plea of such acquittal, with proper averments that the slave Caleb, mentioned in one indictment, is one and the same person with the slave Caleb mentioned in the other. This incontestibly proves, that the title or ownership of the slave is not of the essence of the offence of killing him. For then an acquittal upon the charge of killing a slave, the property of A. could not be an acquittal for killing a slave, the property of B. This case is within the principles of Pye’s case, and that of Susanna Johnson. Pye was char ged with robbing a person in the dwelling house of A 5 the robbery was proved to have been from the person, but it was not proved to whom the house belonged. Upon conference of all the Judges, it was held to be immaterial.

The motion for a new trial must, •therefore, be overruled.

To avert the punishment which the Law has affixed to murder, the counsel for the prisoner insists that he is enti-tied to clergy. This depends on the construction of the act jn connection with former acts on the subject of murder. As a preliminary remark, I will observe, that at the Common Law, all felonies (murder inclusive) are punishable with death. But a clergyman, from the veneration in which the clerical character was held by the founders of our Law, was exempted from the punishment of death, if the bishop would claim him as a clerk, — and of his being so, reading was the evidence. Hence came the benefit of clergy. In process of time, this benefit was extended to all persons ; and thence it came to psss, that the most enormous crimes were unpunished. Tiic Legislature perceiving this, hath proceeded, from time to time, to take away the benefit of clergy from certain offences. The consequence is, that clergy is allowable in all felonies, but where it has been expressly ousted by statute. The question, therefore, is reduced to this : Is the benefit of clergy taken away from the offence, of which the prisoner is convicted ?

The statute 23 Hen. 8, c. 1, ousteth clergy in cases of wilful murder, of malice prepense. Our slat. 1817, c. 18, declares the offence of killing a slave shall thereafter be considered and denominated homicide, and shall partake of the same degree of guilt, when accompanied with the like circumstances, that homicide does at Common Law. The prisoner has been convicted of killing the slave Caleb with malice aforethought; and such a killing of a human being is, at the Common Law, murder. Of murder, therefore, is the prisoner guilty. The effect of the act of 1817, is to give to a slave the character of a human being, and to place him within the peace of the state, as far as regards his life. This latter act, therefore, virtually declares this offence to be murder, and the statute 23 Hen. 8, takes away clergy. Nor does it make any difference whether the benefit of clergy be taken away by the same statute which creates the offence, or by any other, prior or subsequent. For, when the supreme, authority creates an of-fence, giving it a well known legal and technical name, the offence assumes all the qualities of its name : that is, it becomes the thing the Legislature declares it shall bo. Our statutes of bigamy, mentioned in the argument, bear no analogy to this case. The statute 1790, provides tiiat bigamy shall be felony, and that the felbn shall suffer death: yet a person, convicted under it, was allowed his clergy, because it was not taken away by that or any other stahiie, and, at Common Law, it still remained. We are not, however, left to our own reasoning alone, upon this question ¿ the authorities arc the same way. Foster, in his Treatise, lays down the Law thus: The stat. de Clero 25 Ed. 3, provides that clerks convict for treasons, or felonies touching all persons, other than the King himself, or his royal majesty, shall have privilege of Holy Church. Treasons created by after statutes relative to the coin, the establishing of the King’s regal, and abolishing the Papal supremacy, were ousted of clergy without express words, as coming within the exception of tiie slat, de Clero, because they were treasons touching the King’s royal majesty.

We are therefore of opinion, that the prisoner is not entitled to the benefit of clergy, and tiiat judgment of death be. awarded against him. 
      
       2 East’s Cr. L. 785.
     
      
      
         Fost. Tr. 190, 191.
     