
    
      The State vs. Nathan, slave of Gabriel South.
    
    The prisoner, a slave, was tried for robbery: the proof was, that he violently assaulted and threw down E. M. a white woman, the prosecutrix, with the intent, as it is supposed, to ravish her: that, to induce him to release her, she promised to give him money: he consented, — followed her close behind to her house near by — no one being at home except herself — where she, through fear, as she testified, gave* him a dollar: the prisoner had been first tried for assault and battery with intent to commit a rape, convicted of an assault and battery only, sentenced to be whipped, and punished accordingly:—
    
      Held, that the conviction for assault and battery, under the charge of assault and battery with intent to commit a rape, was no bar to this prosecution for robbery, ()
    
      Held, also, that the facts and circumstances proved, taken in connection with the result of the first trial, constituted this a case of robbeiy.
    
      Held, further, that the evidence, concerning the general transaction, which was in proof on the first trial, was properly admitted on the trial for robbery.
    Appeal from the decision of a magistrate and freeholders convicting a slave of a capital offence: at the request of the Judge, before whom the appeal was taken, the Court of Appeals heard argument, gave their opinion on the case, and then left it to the Judge to make such order as he might think proper.
    
      
      Before Wardlaw, J. at Chambers, Abbeville, July 22, 1851.
    On the 26th February, 1851, Elizabeth Mitchell, a white woman, of Laurens district, made oath before Thomas J. Sullivan, a magistrate of the same district, as follows :—
    “ Personally came Elizabeth Mitchell before me, the subscribing magistrate, and maketh oath, as the law directs, and saith that, on Saturday, the 22d of February, last past, at the residence of my mother, in the district and State aforesaid, I was attacked by a negro boy in a rude and violent manner; he laid violent hands on me. I had a hard scuffle with him; he got me down on the ground and choKed me until he left marks on my neck, and by my promising him to give him what money I had, he let me go. I went in the house and gave him one dollar; that was all that I could find then ; he left; he abused me a good deal in the scnffle ; I am not acquainted with Gabriel South’s boy Nathan, but from all the circumstances, and what I have heard, I believe it to be him; the boy that I had the scuffle with, I would suppose to be seventeen or eighteen years old, rather slim built, had his hat off and his shoes.”
    On this affidavit, a warrant, for the arrest of Nathan, was issued, stating the offence to be, that “ Nathan, the property of Gabriel South, did treat her, Elizabeth Mitchell, in the rude and violent manner set forth in the above affidavit.”
    Nathan having been arrested, was, on the 10th April, 1851, tried before Thomas J. Sullivan, magistrate, and five freeholders, under the charge of an “ assault and battery with the intention of committing a rape.”
    “ Elizabeth Mitchell, the prosecutrix, was sworn, and said that on the 22d February, 1851, as she was coming from -the spring, she saw a shadow come up by the side of her, and she looked back, and she saw the negro right after her; by the time she had turned again, he had hold of her, and threw her down and choked her — “ he choked me very bad” — and she broke his hold, and then he caught her by the throat again, and she broke his hold again, and said to him if he would let her go, “ 1 would give him some money,” and he said if she would give him money he would let her go. “ I got up then and went to the house and hunted for the money, and I could not find the money, and asked him if he would have some meat 1 the boy said no, he wanted the money, and I got a dollar and gave him', and he walked very slow, and as soon as he passed the corner of the house, so that he could not see me,” she started to sister Caty’s. Ixj When he came up, he caught her by the waist and threw her down; she resisted, and broke his hold; she broke his hold with difficulty; he fell across her breast, and she broke his hold again; she never saw the boy before, but says the boy Nathan, is the same boy at the bar,' and that it is about a quarter of a mile to sister Caty’s house, and that she hallooed three times; she recognized the boy as soon as she saw him at Bradford Boyd’s, without being asked ; the boy seized her about fifteen yards from her mother’s house; no person lives with her but her mother; she says her mother had just left home; and two children there, one four years old and the other one; and her mother returned Sunday about morning; about nine o’clock; this circumstance happened about nine or ten o’clock; Mr. Balentine’s boy was run away at that time; she says she told Dr. Downey the boy was about the size of his boy, but she did not say he resembled his; she was scared very bad;. her sister Caty was at home when she went there; she saw the boy at Bradford Boyd’s in the night with a cap on; and he had no shoes or hat on when he laid hold of her, and that he was in shirt sleeves when he made the attack ; the negro was taller than she was; she says the boy was a black boy; when she gave the boy money he did not say that was all he wanted; she supposed the boy to weigh about 130 pounds.”
    The court found the prisoner guilty of “ an assault and battery, and say that he shall have one hundred lashes on the bare back, with a switch — fifty this evening and fifty on Monday week, at the Poplar Spring meeling house.”
    In conformity with this sentence, the prisoner was punished.
    
      On the 20th April, 1851, Elizabeth Mitchell made a second oath before Thomas J. Sullivan, as follows:
    “ Before me, personally came Elizabeth Mitchell, and on being sworn, as the law directs, saith that on the 22d of February, last past, which was on Saturday, that she was attacked, and rudely abused, thrown down, violently and choked, with the intention, she believes, of being ravished, near her mother’s residence, in the State and district aforesaid, by a negro boy by the name of Nathan, the property of Gabriel South, of the same district. She further swears that, in order to save her life and chastity, as soon as she could speak from being choked, she said to the boy Nathan, if he would let her up she would give him something to eat, money, or any thing she had. The said Nathan replied, then give him the money. He let her up and she went into the dwelling house, he following close behind her.— She found a silver dollar and put it in his hand, against her will entirely, through fear: and to save herself from further violence. She picked up the children and run to her sister’s in great alarm, the boy Nathan going out around the house; upon returning to the house, she found the place where she got the silver dollar ransacked, and a ten dollar bill gone, which she has reason to believe was done by the negro Nathan.”
    On this affidavit, on the 21st April, 1851, a second warrant, for the arrest of Nathan, was issued, stating the offence to be, “ that Nathan, a slave, the property of Gabriel South, of the district and State aforesaid, on the 22d day of February, last past, in the year of our Lord one thousand eight hundred and fifty-one, in the district and State aforesaid, in the dwelling house of one Anny Mitchell, there situate, in and upon one Elizabeth Mitchell, the daughter of the said Anny Mitchell, in the peace of God and. the said State, then and there being, feloniously did make an assault: and the said Elizabeth Mitchell, in bodily fear and danger of her life did put, and one silver dollar of the value of one hundred cents of the goods and chattels of Anny Mitchell, her mother, from the person and against the will of the said Elizabeth Mitchell, in the dwelling house aforesaid, then and there violently and feloniously did steal, take, and carry away, against the peace and dignity of the same State aforesaid.”
    On the charge of robbery contained in the above warrant the prisoner was brought to trial, found guilty, and sentenced to be hung: thereupon a suggestion was filed praying, 1st. a writ of prohibitioiij and failing in that, 2d. an order for a new trial.
    One of the grounds contained in the suggestion was as follows.
    “4th. Because the judgment and sentence of the Court of Magistrate and Freeholders upon the same slave, tried on the 10th of April, last past, for an assault and battery upon Elizabeth Mitchell, with intent to commit a rape, which was offered in evidence on this trial, as a bar to this prosecution, should have been so held by the Magistrate.
    The application was made before his Honor, Judge O’Neall, at Chambers, at Columbia, May 20, 1851, who pronounced judgment as follows:
    OWeall, J. The various objections taken to the organization of the Court, want of nolice and defect of the record, cannot avail the prisoner. I cannot notice them all. The most prominent may deserve particular notice. There is no legal objection to the summoning of a juryman, who was summoned for the trial of the same slave for a different offence. The legal objection arises when there has been a trial, and a new trial is ordered. So, too, the Magistrate did right in refusing to be superseded in the trial, and not permitting questions to be asked of. himself and the jurors as to their opinions. Baldwin’s case decides that no such question shall be put to a juror.
    The notice was not sufficient in the first instance, but the case was adjourned over to the next day; that supplied the defect.
    The objections to the address of the warrant against the slave, its execution, and the execution of the summons or warrant (as it is called) for the jurors, cannot avail. The warrant is directed to any lawful constable, the prisoner was brought up under the warrant, and the jurors attended.
    This is sufficient.
    The manner of stating the charge is sufficient. The technical precision of an indictment is not expected or required. Any plain statement in writing of the offence is all that the law requires. I have not discovered any incompetent evidence received by the Court. In general, I think the case was very properly conducted, and the Magistrate deserves to have it said, that he has displayed great judgment and general accuracy.
    Upon two grounds, however, I think I ought to award the prohibition.
    1st. The prisoner’s offence is not robbery.
    2d. The former conviction is a bar to any other proceeding.
    1. It may be, that an assault with an intent to commit a rape, followed by the delivery and acceptance of money to obtain an exemption, would be robbery. But here the former convictinn has negatived forever and conclusively the intent to commit a rape. The case from East (Blackman's case) is a strong authority against the prisoner; but the distinction to which I have just alluded prevents its force and effect upon this case. So, too, I think, there is a very material distinction, in the fact there stated, that the force was continued to the delivery of the money and afterwards. Here the woman was released, went to the house, seventy or eighty yards distant, and delivered the money without any show of force. There is nothing in the case looked at in the points of view which I have suggested, which amounts to robbery or even larceny.
    2. I have no doubt that two offences may arise out of the same act. I am, however, not prepared to say, that the same facts will constitute two distinct felonies. Certainly, however, there cannot be a misdemeánor and a felony in the same transaction, of which the prisoner may be successively convicted. The misdemeanor is merged in the felony. Here the prisoner is convicted of assault and battery, on the charge of an assault and battery with an intent to commit a rape. The intent being negatived, there could be no felony. For if there was no intent to commit a rape, the delivery of the money was without such a putting in fear, as the law requires to make the offence of robbery.
    I think the former conviction concludes the whole matter.
    The writ of prohibition is, threfore, ordered — that the slave be discharged from prison and delivered to his master.
    From the above order, awarding a writ of prohibition, an appeal was taken, on the grounds,
    1. Because it is respectfully submitted, that the Judge erred in ruling that the case made in the prosecution and found by the jury, was not robbery.
    2. Because the finding of the jury in the previous case against said slave, for an assault and battery with intent to commit a rape, was no bar to the present prosecution for robbery.
    3. Because the decision of his Honor, ordering the prohibition, is, in other respects, contrary to law. .
    The appeal was heard in May, 1851, and the Court of Appeals set aside the order of Judge O’Neall, holding, that a writ of prohibition could not be granted, and that the only remedy was by appeal for a new trial. See the case reported 4 Rich. His Honor, Judge O’Neall, then, after notice and upon application, ordered a new trial, on the grounds on which he had granted the writ of prohibition.
    A second trial for robbery was had, which resulted in a mistrial.
    On the 9th July, 1851, the prisoner was, before Lem. G. Williams, magistrate, and five freeholders, tried, the third time, for the robbery.
    Elizabeth Mitchell, the prosecutrix, testified substantially to what she had sworn on the trial for assault and battery with intent to commit a rape. She added, “ the scufñe was seventy yards from the house; she said she stated on a former trial it was about fifteen yards — it had not been measured then ; * * * He, the negro, followed me close on to the house, and stood in the door until I found the money; he stood in the door about thirty feet from me, and kept his eyes on me all the time I was searching for the money, say about fifteen minutes; I hunted for the paper money first; there was nobody about the house; I was very much alarmed; I found a silver dollar and gave it to him; it was my mother’s money; I gave it to him for fear of my life or bodily injury, and not voluntarily. * * * When I came back to the house, the drawer was broken open and a ten dollar bill taken.”
    The Court found the prisoner guilty, and sentenced him to be hung, on Friday, 29th August, 1851.
    Gabriel South appealed, and gave notice that he would move, before his Honor, Judge Warduw, for a new trial, on the grounds,
    1st. Because the Magistrate erred in admitting in evidence testimony as to the assault and battery with intent to commit a rape on the prosecutrix; for which the prisoner was tried, convicted and punished, under a verdict of a magistrate and freeholders, rendered on the 10th April, last past.
    2d. Because the facts of this case will not constitute a robbery in law.
    3d. Because the offence committed, is clergiable, and the prisoner should not be executed.
    4th. Because this was a second trial for the same offence, and the former verdict should have been held a bar to this proceeding.
    5th. The verdict found against the prisoner on the 10th of April last, by the Magistrate and freeholders, which was pleaded in bar of this prosecution, should have been held a good de-fence, because the evidence in this case is sufficient to have convicted the prisoner of the offence for which he was then tried, and without the evidence which was necessary to that conviction being offered in this case, the offence of robbery charged in this prosecution is incomplete.
    6th. Because the affidavit upon which the prisoner was tried on the 10th of April last, contained the same charge of robbery, for which the prisoner is now convicted — and the silence of the verdict, in relation to the robbery on such first trial, was an acquittal of that branch of the offence. Because the Court of Magistrate and freeholders, then had jurisdiction of the whole matter. The prisoner appeared to defend the whole charge contained in the affidavit and warrant of arrest; and if the prisoner was not technically put upon his trial for the robbery, he might have been, and that is conclusive of the whole matter.
    7th. The Magistrate and freeholders wholly disregarded the law of this case, as laid down hy his Honor, Judge O'Neall, who granted the former new trial in this case — and who, by the Act of 1833, is made the Appeal Bench in such cases.
    The motion was made on the 22d July, at Abbeville, and his Honor delivered his opinion as follows :
    Waudlaw, J. The testimony reported by the Magistrate, appears to me to show that the questions concerning the credibility of the prosecutrix, and the proof of the alibi which was attempted in the defence, were properly decided against the prisoner. Only a strong assurance of error committed, would induce me to interfere with the conclusion which the triers, appointed hy the law, have attained upon questions of fact.
    That benefit of clergy has been taken away from the crime of robbery, does not admit of doubt. The remaining questions of law which have been argued, may then be resolved into three, to wit:
    1. Is the conviction of assault and battery, had against the prisoner in April last, for the same general transaction now .proved against him, and upon the same evidence now adduced, a bar to this prosecution for robbery ?
    2. Do the facts and circumstances now in evidence, taken in connexion with the former finding as to intent, constitute a case of robbery 1
    
    3. The evidence concerning, the supposed intent to ravish, concerning the actual violence done to the prosecutrix, and concerning all the circumstances prior to the moment when the prisoner released the prosecutrix from his grasp and she started towards the house, having all been offered on the trial in April, and the guilt thereby established having all been embraced in the offence whereof the prisoner was then convicted — -was not all such evidence inadmissible on the present trial?
    My impressions* are unfavorable to the prisoner upon every one of these questions, and if i were now to pronounce an opinion, it would answer them thus :
    1. Assault and battery and robbery, are not like those offences where'of one grows out of the other by the occurrence of some circumstance supervening the acts of the offender, as murder grows out of an assault with intent to kill by the death of the person assailed; nor are they like those offences whereof one necessarily contains the other, and is made larger than it by additional acts of the offender, as rape contains an assault with intent to ravish, and also acts additional thereto; but they are distinct offences, dissimiiar in kind as in degree, one being no necessary ingredient of the other: they may be both perpetrated in the same transaction, but they must be severally consummated by different acts, however nearly simultaneous those acts may be • and the act which consummates one may be wholly wanting to the completion of the other. All that is alleged in a charge of robbery, or that is necessary to be proved to support such a charge, would be insufficient to produce a conviction of assault and battery, and vice versa. Under the simple allegation of one of these offences, there could not be regularly a conviction of the other; and however, in the loose practice of a Court of Magistrate and freeholders, it may have been lawful to join in one trial felony and misdemeanor, or dissimilar offences of either grade or both grades, the conviction of assault and battery was actually had under a charge which did not include any allegation of robbery, and from it an acquittal of the robbery cannot be inferred by reason of merger, or any other principle of criminal law.
    The former conviction, then, is no bar to the present prosecution.
    2. Whatever may have been the intent of the assault and battery, the acts of the prisoner which followed it, (when explained and characterized by his previous violence,) show such a taking by putting in fear, as constitutes a case of robbery.
    3. The testimony of the prisoner’s conduct previous to the taking, although it may show an offence distinct from the one he is now charged with, was pioperly admitted as evidence of other transactions referable to the point in issue; just as evidence of an outrage upon another female, for which the prisoner had been punished before the day of the offence now alleged, would have been admissible to show the true motive, meaning and efficiency of equivocal acts, which actually did excite fear and constrain the delivery of money.
    But the conclusions which I would thus attain, are directly opposed to the opinions which, upon the first two and the most material of these questions, Judge O’Neall expressed in granting an order for prohibition, and repeated in granting a new trial in this very case, upon almost the same testimony as that which is now before me. The questions, I understand, were fully argued before the Court of Appeals in May last, when I was holding the Circuit Court in Charleston ; but the opinion of the Court of Appeals only set aside the order for prohibition, and left these questions for the consideration of the Judge to whom the application for new trial might be made. If the result of the new trial had been conformable to Judge O’Neall’s opinion, or if the appeal had been again taken to him, I would have been saved from the painful necessity of balancing bet een the authority of a brother’s opinion oil one hand, and the arguments which give a contrary tendency to my own judgment on the other.
    As the matter is, however, I cannot, in view of the momentous and irreparable consequences which would ensue to the prisoner, venture to give my impressions the form of a definite opinion refusing a new trial. Nor can I, in the honest discharge of my duty, order a new trial, without seeing the particular wherein I can say that the conviction is erroneous.
    To give time, therefore, for consultation with my brethren when we meet next winter, or for then taking the opinion of the Court of Appeals after full argument, if that will be permitted, I will suspend the exectition of the sentence until further order be made. Notwithstanding that an appeal does not ordinarily lie from the decision of a Circuit Judge upon an application like this, I trust that the peculiar circumstances here existing will induce such action by the Court of Appeals as will settle conflicting opinions concerning the law involved in the case-.
    It is ordered, that the execution of the sentence passed upon the prisoner be stayed until a new day be assigned by further order; and that until some contrary order be made, the prisoner, Nathan, be detained in safe custody by the sheriff of Laurens district.
    It is further ordered, that the case be docketed on the docket of the Court of Appeals, at its next sitting in Columbia, and that the counsel on both sides be prepared to argue it fully there before the said Court, if permission for them to do so shall be given, the prisoner’s counsel preparing the briefs and taking the part of appellants, as if this were a refusal of their application.
    The case was now heard in this Court.
    
      Jones, for the appellant.
    The evidence as to the assault and battery should not be received on the trial for robbery; because, for the assault and battery the prisoner had been already tried and convicted: and without that evidence there was no proof that the prosecutrix was put in fear. 1 Stark. E v. 227: Dud. 43; 2 N. <fc McC. 280 ; 2 Bail. 49 ; 7 Conn. It. 54; 15 Mass. 187 ; Hale P. C. 246 ; 4 Coke, 46 ; 7 Conn. R. 414; 4 Wend. Bl. 335, note 9 ; 1 Chit. Cr. L. 452, 462; 1 Greenl. R. 361; 17 Wend. 386; 12 Pick. 496 ; 2 Leach, 16 ; 1 Chit. Cr. L. 453 ; 3 B. & C. 502; 1 Hale P. C. 425 ; Foster Cr. L. 64. The State had the opportunity to make the charge for robbery when the prisoner was first tried. It then failed to make the charge and is concluded. There is no technical indictment in a Court of Magistrate and freeholders, and upon the first affidavit and warrant the prisoner might have been tried for robbery. 1 Bac. Abr. 633; 2 Strob. 105; 1 Bail. 324; 1 Johns. Ch. 91; 1 Rich. Eq. 271; 3 Strob. Eq. 139. Admitting that evidence of the assault and battery was admissible on this prosecution, still the evidence was not sufficient to convict the prisoner of robbery. It is clear the prisoner did not intend to force money from the prosecutrix. The verdict on the first trial negatived the charge of a feloneous intent to ravish. There was therefore no feloneous intent at all. The act was a mere trespass. 2 East P. C. 707, 711; 2 Hale, 247; 1 Chit. Cr. L. 457; 1 Leach, 135, note a ; 2 Stark. Ev. 740 ; Roscoe Ev. 36. No sufficient putting in fear. 2 East P. C. 661, 709, 713, 715, 727, 732, 734; Foster Cr. L. 129 ; Leach, 199 ; 1 East’s Addenda, 26 ; Roscoe Cr. Ev. 749. The decision of his Honor was like the decision of the Appeal Court on the case, and the magistrate and freeholders were bound to regard it.
    Sullivan, Young, contra,
    cited 2 East P. C. 707, 711; 2 Hawk. 527, ch. 35 § 5 ; 12 Pick. 496; 2 Mass. 409 ; 17 Pick. 395 ; 1 Ch. Cr. L. 452, 453, 457; 1 No. Car. Law Rep. 519; Roscoe Cr. Ev. 742, 837; 1 East’s Add. 844, chap. 21; 4B1. Com. 336; 2 Leach, 816.
    Jones, in reply.
    1 Stark. Ev. 445, 449.
    
      
      (a) An assault and battery, by a slave, upon a white woman, with intent to ravish her, is, by statute, in South Carolina, a capital felony. it.
    
   The opinion of a majority of the Court was given as follows :

After full argument heard in this case we are of opinion,

First, That the result of the former trial, (wherein the prisoner, under the charge of assault with intent to ravish, was convicted of assault and battery, and in effect acquitted of the intent to ravish), was no bar to this prosecution, wherein the prisoner has been convicted under a charge of robbery:—

Second, That the facts and circumstances contained in the report of the evidence in this case, taken in connection with the result in the former case, constitute a case of robbery:—

Third, That the evidence concerning the general transaction which was in proof on the first trial, being referable to the point in issue on the second trial, was properly admitted :—

Fourth, That further order in the case pertains to the Judge, to whom the application for new trial was made, and who has sought our opinions : and that (the case being remanded to him) it is for him either to order a new trial, or to assign a new day for execution of the sentence.

Josiah J. Evans.

T. J. Withers.

J. N. Whitner.

D. L. Wardlaw.

Edward Frost.

O’Neall, J.

dissenting, gave his opinion as follows :

In this case, although Judge Wardlaw could, if he had thought proper, have refused the prisoner’s motion, and no appeal would have lain from his decision, yet as he has asked the opinion of the members of the Appeal Court, I simply state, that I think, as I have heretofore stated, that there is legally no such offence as robbery of which the prisoner can now be convicted.

The former conviction has settled, that there was no assault and battery with intent to commit a rape. It is, therefore, according to my notions of law, incompetent to offer, on the charge now made, those facts. They are merged in the record of conviction of assault and battery. Cutting off this proof, there is no proof of force, or fear, which can make the offence robbery. Indeed there is no larceny: it is the delivery of a dollar without compulsion.

So, too, I hold .the former conviction is a bar to this accusation. The warrant contains really the charge on which the prisoner was tried. Every fact now charged is there charged. To talk about the precision of indictments, and the rules growing out of them as applicable to magistrates and freeholders’s courts, will be, as I think, a talk to end in palpable injustice. But considered on the most technical grounds, it must have the same effect. The prisoner cannot be now convicted without resorting to the very evidence which convicted him before. This is enough to shew that the former record is a bar.

In justice ought it not to be so ? The prisoner has been severely whipped, — and even if that was too small a punishment, do the humane principles of the common law demand any thing further? Sure am I, they do not. If the prisoner was a white man, and not a negro, could such a course receive the countenance of any one 1

I think, too, that the magistrate and freeholders were bound to follow my decision, and that Judge Wardlaw should have enforced it. Any other course leads to the strange anomaly of six fHffp.Tp.nt appellate jurisdictions from negro trials : and all of them often in direct collision witl} one another.

I close now my duty to this case, with the happy relief, that, if I have been in error, it has been corrected by the better judgment of my brethren, — and I am sure, I am more gratified by the consciousness, that none of the blood of this negro will rest upon me, than the prosecuting parties can be, who will now be gratified by offering up his blood, as a saerifice on the altar of public justice.

Waldlaw, J. then made an order refusing a new trial, and assigning a new day for execution of the sentence passed by the Court of Magistrate and freeholders.  