
    STATE vs. ANTHONY, A SLAVE.
    Oil the trial of an indictment against a slave for a capital offence, it is good cause of challenge on the part of the State to one called as a juror, that he is nearly related to the owner of the slave, as it would be on the part of the prisoner that a juror was a near relative of the prosecutor.
    An indictment for high-way robbery may charge either that the robbery was committed in the high-way or that it was committed near the liigh-way.
    Appeal from tbe Superior Court of Law of Northampton County, at tlie Spring Term, 1847, his Honor Judge Bailey presiding.
    The prisoner is a slave of Kinchen Powell, and was indicted with a free woman, for robbing- Joseph Britt, in the public high-way, of one dollar and other things. When forming a jury for the separate trial of the prisoner, three of the persons drawn and tendered were challenged by the Attorney General, because they wore related to the owner of the prisoner; and, that appearing, the challenges were allowed, notwithstanding an objection by the prisoner’s counsel. Afterwards a jury was formed before the prisoner exhausted his number of peremptory challenges, and he was convicted, ilis counsel moved for a venire de novo, for error in allowingthose challenges, which was refused. He then moved in arrest of judgment, because the indictment did not conclude contra formam slatuti, which was also refused; and then sentence of death was passed, and he appealed to this Court.
    
      Attorney General, for the State.
    
      Bragg, for the defendant.
   RuffiN, C. J.

The Court is opinion, that the challenges were properly allowed. It is true, the statutes which give slaves the trial by jury in capital cases, do not ¡specify the qualifications of the jurors, farther than that they shall be owners of slaves; but only require that they shall be good and lawful men, and prescribe that the trial shall be conducted under the same rules, regulations and restrictions, as trials of free-men for a like offence. Rev. Stat. c. 111, s. 43, 45, 46. Yet the latter provisions arc sufficiently comprehensive to entitle the slave to all those privileges, which are intended to secure to an accused person a jury, indifferent between him and the State. It is clear the prosecutor, or one nearly related to him, would not bo a good.juror, if challenged for that cause by the prisoner. The application of the -principle, on which that rule stands, and on which the common law proceeds in forming juries in all cases, necessarily excludes the owner of the slave, or his son, and, by consequence, any other relation from sitting on the trial. The concern in interest or feeling of those persons in the result is inconsistent with that indiiferency, which the law seeks. If this slave were the subject of a civil action between his owner and another, neither of those persons could have been of the jury, on the score of their favor for their kinsman. The same state of feeling- prevents them from being held impartial on this trial; They are not “ good and lawful men,” in the sense of the statute. This is clear from the second proviso in the Act of 1793, c. 3S1, s. 7, being the first that gave the trial by jury to slaves in the County Court, which required, that the three justices and jury of slave-holders, who constituted the called Court, should “ not be connected with the owner of such slave, or the prosecutor, cither by affinity or consanguinity.”

The counsel for the prisoner in this Court abandoned the objection taken in the Superior Court in arrest of judgment, that'the indictment concluded at common law: and very properly, as the statute did not create the oifenee, but only ousted clergy. But he took another, namely, that the indictment was bad, because it did not pursue the words of the Act and lay the robbery to have been “ in or near” the highway. It appeal's that it was once usual to frame indictments in that way at Newgale, as Lord Haue informs us. 1 Hale P. G. 535. But he certainly does not deem it necessary, nor, as is plain, strictly proper ; for he admits it violates the rule, which requires certainty in indictments and rather apologizes for it, as tolerated upon usage. The passage in which he cites a case from Trin. 38, Hen. 8, of an indictment of robbery in quadam via regia pedestri, being held bad, which was urged on us as an authority, that it should have been in vel props, does not turn upon the omission of the words, “vel props” but that of allam, because, as he says, ‘'it is not sufficient to say only via regia, or ivia regia pedestri, since the statute is touching a robbery on the King’s Highway. Moreover, there are many precedents of indictments not in the disjunctive, but laying the offence positively in the highway, and others laying jt near the highway. The King v. Slone, 1 Tremaine 288, is an instance of the former, and that precedent is adopted by Dogherty, Cr. Cir. Com. 682; while Fowler’s case, which is stated by Mr. East, PI. G. 785, is an instance of the latter. The more recent precedents in England do not aid us, as it not necessary now to state any place, because the statute 3 W. and M. took away clergy from all robberies. But the older ones, and the reason of the thing, make it plain, that an indictment, if good when it is in vel prope altam viam, is certainly so when it is in one count, in the highway, and in another near it.

Per Curiam. Ordered to be certified accordingly.  