
    
      The Commonwealth v. Nix.
    June. 1841.
    General Court — Adjournment of Question to — When Proper. — Upon the trial of an indictment for felony, prisoner’s counsel moves an Instruction to the jury, in effect, that the evidence adduced lor the prosecution does notprove that the crime charged in the indictment was consummated, and therefore they ought to find for the prisoner; the court, with assent of the prisoner and of the attorney for the commonwealth, adjourns the questions arising on the motion to this court, discharges the jury, and continues the cause till the next term: EQsld, upon construction of statute 1 Key. Code, ch. 69, § 14, it was regular to adjourn the questions to this court, and the court ought to decide them.
    Criminal Law — Free Negro — Conditional Sale — Effect-Statute — Case at Bar. — Upon an indictment on statute 1 Rey. Code, ch. Ill, § 38, for selling a free negro for a slave, the evidence of the sale is a written agreement, importing that prisoner sold the negro to yendee, for which he was to deliver and pay goods and money to vendor, hut vendee was to take the negro on trial for a month, and if at end thereof yendee likes him, vendee is to pay the price, and vendor to give a bill of sale; yendee pays a small part of purchase money; within the month negro runs away; and upon suspicion that he was a free negro, or had been stolen by the prisoner, the prisoner is apprehended within the month: Held, 1. that the sale of a free negro, to constitute the felony within the statute, must be an absolute sale; 3. that the contract in this case was in its terms a conditional sale, to be affirmed or annulled, at vendee’s option, within a month, but if alllrmed by him, the sale then became absolute, and the felony was complete; and 3. that such affirmance of the sale by the vendee may be proved, either by positive act of yendee, or by mere lapse of time without any act of yendee affirming or annulling the sale.
    Case adjourned from the circuit superior court of Lee. Nix was indicted upon the statute 1 Rev. Code, ch. Ill, § 28, for feloni-ously selling and delivering to one Jones a negro man as and for a slave, who was at the time of the sale and delivery free, knowing the neg-ro man so sold to be free. He pleaded not guilty, and was put upon his trial at April term 1841.
    Upon the trial, it was proved on the part of the prosecution, that the prisoner made a contract in writing with Jones, in the following words; “Article of an agreement made this 11th January 1841, Daniel Nix of one part and Stephen Jones of the other, that said Nix do sell to said Jones a certain negro called Dive ; witness, that said Jones gives said Nix a roan stud horse, a certain brown horse called Jack, and one saddle, and 20 dollars in store goods, and 200 dollars in lawful money of Virginia, and a carryall wagon, for said boy;- -which said Jones takes the said boy on trial for one month, and if said Jones likes the said boy at the end of the month, said Jones delivers the above named property to said Nix ; also said Nix binds himself to give a good bill of sale to said boy ; also said Nix insures said boy to be sound and clear of any impediment whatever. We witness our hands and seals the day and year above written ” (signed and sealed by both parties). That in pursuance thereof, the prisoner forthwith delivered the negro to Jones, who shortly afterwards, at the prisoner’s instance, advanced him about seven dollars on account of the price of the negro. 'That the negro remained with Jones about twenty days, and then ran away ; which, with other circumstances which Jones learned,- led him to suspect that the negro was either free, or had been- stolen by the prisoner previous to the sale to him-; and under this belief, Jones pursued the prisoner, who was then passing through the county of Lee, and apprehended him before the -expiration of the month. And that the prisoner voluntarily and frequently made the fullest confessions, saying among other things, that at the time of the sale to Jones, he knew the negro to be free. Whereupon, the prisoner’s counsel moved the court to instruct the jury, that if they should believe from the evidence, that the contract of sale of the negro as a slave, was a conditional contract, to be made binding or not. at the option of the vendee Jones at the expiration of one month from the date of .the conditional • contract, during which time Jones was to keep the negro on trial, and that before the month expired the negro ran away, and this prosecution was instituted; then, although the prisoner at the time of sale well knew the negro to be free, the sale was not an absolute sale, such as the statute required it should be to constitute the offence for which the prisoner was indicted ; and that the jury should find for the prisoner. And the court doubting as to the propriety of giving such instructions, with the prisoner’s assent, adjourned to this court for novelty and difficulty, the following questions — 1. Is the contract of the 11th January 1841 such an act as amounts to a sale within the meaning o.f the statute ? And 2. what instruction ought the court to give to t,he jury?’ And then, with the consent as well of the prisoner as of the commonwealth’s attorney, the, jury from rendering a verdict were discharged, and the case continued till the next term.
    
      The principal case is cited In Briggs v. Com., 83 Va. 561.
    
      
       1116 words of the statute are — “If any person shall hereafter be guilty of stealing or selling any free person for a slave, knowing the person so sold to be free, and shall be thereof lawfully convicted, the person so convicted shall undergo a confinement in the public jail and penitentiary house for a term not less than one nor more that ten years.’’ — Note in Original Edition.
    
    
      
      The statute 1 Rev. Code, cli. 69, § 14, p. 23a, whereby it is provided, that the circuit superior courts, “ in any criminal case, may, with the consent of the person accused, adjourn a question of law to the general court, which may be there argued and decided though such accused person be not present.” — Note in Original Edition.
    
   UPSHUR, J.,

delivered the resolution of the majority of the court. A preliminary point, not submitted by the circuit superior court, was examined by the judges in conference. The questions adjourned arose in the progress of the trial, and thereupon the jury were discharged, and the trial postponed till the next term. A majority of the judges -are of opinion, that the statute authorizes this course-of proceeding, although they disapprove it as both inconvenient and hazardous.

In answer-to the first question adjourned, this court is of opinion, that the contract between the prisoner Nix and Jones, set out in the record, is not, by the mere force of its terms, such an act as amounts-to a sale within the meaning of the statute. That contract is not a sale, but an agreement to sell, which the vendee had a right to affirm, or- annul, as he might think proper, at any time within the month allowed by its terms; and until it was so affirmed, the sale was incomplete, and no change of property was effected thereby. Whether it-was so affirmed or not, is a question for. the jury to determine upon the evidence which may be laid before them. Its affirmance may be proved, either by some positive act on the part of the vendee Jones shewing his election to affirm it, or by the mere lapse of the time • allowed in the contract, without any act on his part affirming or annulling it. I-f affirmed ■in either of those modes, it ceased to be conditional, and-became absolute ; the sale was thus rendered complete and perfect, and came within the provisions of the statute. This opinion affords a full answer to the second question adjourned.

SAUNDERS, BROWN, CHRISTIAN, GHOLSON and JOHNSTON, J.,

dissented. They regarded the contract, not as a mere agreement for-a sale, but an absolute sale, subject to be disaffirmed by the vendee within the time specified by the agreement, and so coming within the provisions of the statute.

LOMAX, J.

-1 differ from'the majority of the court upon the preliminary point, whether a question arising on a motion-made in the progress of a criminal trial for instructions to the jury, be such a question of law as may be adjourned by a-circuit, superior court to this court, and, if adjourned, decided here ? It must, I suppose, be conceded, that it would not fall -within the provision of the statute, or be within the power of the circuit superior court to adjourn, or-of this court to decide, any question of law, propounded, by anticipation, before the occasion that might raise the question, or require the application of the principle involved in it. Now, it does seem to me, that the questions -here adjourned, and any answer which this court may by its-decision give to them, can, as this case is circumstanced, only avail upon some future trial, when the questions now propounded may or may not arise, according to the course which the trial may take. The prisoner’s counsel, in the course of the trial then going on, moved instructions to the jury then sitting upon the case, in order that that jury might be informed as to a matter of law, which the counsel distrusted its competency properly to decide without instruction from the court. But the discharge of that jury, in order that the questions raised by the motion for the instruction might be adjourned to this court and decided here, has put an end to the trial then going on ; and, in regard to that stage of the proceedings, the case stands as if there had been no attempt at such trial. The functions of the jury to whose intelligence and conscience the instructions prayed ■ were to be addressed, were wholly dispensed with, nor can the same jury be ever again impaneled in the cause. The defence upon, which the prisoner then relied, has been, for the time, wholly withdrawn ; the evidence of the parties has been retracted ; the occasion that required the instructions has passed away. Whatever is the defence, whatever the evidence, they are now reserved for a future trial, the conduct of which must be -entirely irrespective of the proceeding's upon the former trial, which has been stopped, without any possibility of restoring the same precise state of things that induced the motion to the court for the instructions. Any decision of this court must be wholly nugatory as to proceedings which have passed away and are now as if they never had been. The decision of this court can only affect the future trial which is expected to take place. But at that future trial, the whole ground of prosecution, or of defence, may be varied ; *the contract for the sale referred to may not be offered in evidence at all ; its construction and effect may not be a question in the case ; even the execution of the instrument may be denied : and while it has become -useless and impossible to instruct the jury, for whose information especially the instruction of the court was asked on the former occasion, it may be unnecessary to prepare instructions for the future jury that may-be impaneled, who may need no such instructions, since the case may be presented to them in a shape involving no such points. Is it not then obvious, that any decision which can now be pronounced, must be altogether hypothetical, applying to a case which indeed may arise, but which may never arise? If such- a practice as this precedent may open, shall-be icstablished, the most perplexing -difficulties may embarrass • the proceedings .in every criminal case, and the ■ administration of criminal justice may be indefinitely delayed, perhaps defeated. It seems to me, that the statute which gave the power to adjourn questions of law in criminal cases ip •this court must have contemplated questions relative to proceedings permanent on the record,-and abiding in their influence upon the final results of the case ; nqt in regard to matters transient and temporary in their nature, having no influence whatever in the case after the occasion that provoked the questions has passed away. If a motion were made to quash an indictment,, such motion might properly be adjourned to this court,and decided : but if amotion were made for a continuance, could that motion be properly adjourned ? The power to adjourn a point of law arising in the course of a trial after the jury is impaneled, which must necessarily require that jury to be discharged, is a power too large to be supposed to have been in the contemplation of the legislature. It is the right (if insisted on) of the commonwealth as well as of the accused, that the jury which has been charged with the *case should rendef a verdict, and should not, unless from great necessity, be discharged : and it could never have been the design of the statute, that the jury trial should be placed entirely in the power of the judge with the consent of the accused ; for no consent on the part of the commonwealth is required for the adjournment of questions in criminal cases. There are numerous questions constantly arising in criminal cases : questions as to the competency ■ of witnesses, or of evidence, as to the legal effect of testimony, as to points of law in regard to crimes and punishments : these, and a variety of other matters, may be perpetually offering themselves at every stage of the trial, and the court with the consent of the prisoner (which he will generally be very ready to give) may, under this precedent, adjourn them or any of them, and thus supersede the functions of the jury, which must be discharged. It was unnecessary to confide such a power to the judges ; because the accused may, in a more regular mode, have the benefit of reserving every point of law he may think proper to insist upon. The power of adjourning questions arising while the jury is in the box (as has been done here) must always occasion great and unnecessary inconvenience and delay; and such a power in the hands of a wicked judge, might be exercised to the entire subversion of the commonwealth’s interest in the due administration of criminal justice.

CHRISTIAN, J., said, he concurred in the opinion of judge Lomax on the preliminary point.

fflLLD, J.

I also concur in the opinion, that the questions in this case are not regularly adjourned to this court, and that we ought not to decide them ; but the majority of the judges present holding the contrary opinion upon this point, and determining to respond to the- questions adjourned, I concur in the opinion of the majority of the court upon them.  