CHERAW DISTRICT,
FALL TERM,
1794.
The State v. Cynthia Simmons, and Laurence Kitchen.
A white man may be indicted and convicted as an accessary to a murder committed by a slave, vide State v. Sims, 2 Bailey, 29. State v. Crank, lb. 66.
An indictment against an accessary to a murder, committed by a slave, need not recite the record of conviction of the shjve by a court of magistrates and freeholders. Ib.
. Indictment for murder. Tho indictment stated th’e murder of John Simmons, the husband of the prisoner, Cynthia, by a negro man slave, the property of the deceased, and charged both the prisoners-as accessaries before the fact. The prisoners being put to the bar, the indictment was read ; but before they pleaded, their counsel submitted Xo the court, whether they were bound to plead, and whether the indictment ought not to be quashed, as it did hot recite the record of the? conviction of the principal, without which, it cannot appear that the principal was convicted.: and .an accessary is not to be put to plead, before his principal be convicted. 2 ílawlc. P. C. ch. 29, sec. 36. 1 Hale, Hist. P. C. 623.
If the principal and accessaries had been joined in the same indictment, and tried together, no conviction can be set forth, and the rule contended for, cannot apply ; but in such case, the accessaries may enter into the full defence of the principal, and avail themselves of every matter of fact, and every point of law tending g to the acquittal of the principal, as it directly tends to their own acquittal. But hero they are brought to trial after the conviction of the principal, in which case the indictment ought to recite, with proper certainty, -the reqord of the conviction, which is evidence against the accessaries, sufficient to put them upon their defence : but such conviction is not conclusive against the accessaries, as they may shew in point of law, such offence in the principal, is not felony as to them. Fosf. C. L. 365.
The prisoners’ counsel further submitted to the court, whether the indictment was not insufficient to support a prosecution in be. half of the State, on another account, viz : that the principal offender is stated to be a negro slave, and the prisoners accessaries to the crime committed by such slave. Aud it was strongly insisted, that by the act of 1740, Public Laws, 164, slaves are to be considered as personal chattels, and not as- persons having any civil or political rights attached to them, except as property belonging to others; and that they may he killed without *7incurring the guilt of murder : the penalty for killing, being pecu» uiary, as for destroying a cow, or a horse. P. L, 172. That the acts of assembly respecting negroes, regard less their protection as membors of society, or hutiian beings, than their preservation as a species of useful property. That this doctrine was familiar to ancient times, Sullivan’s Lect. Co. Litt. 120, b. 2 Bl. Com. 92.
It was, therefore, insisted that there could be no accessary to a murder perpetrated by a-slave. And it was argued, that the rule of law is, that an accessary may controvert thé guilt of his principal, which* in a case of this sort, cannot be done to the same advantage as where the principal is a free white man ; for that the evidence sufficient to convict a negro, would not be sufficient to con. vicl a white man, and that the conviction of a negro may be in a-summary way before an inferior court, which can take no cognit zance of any crime, except committed by a-negro : and that the admission as evidence of the conviction of a negro under the negro act against a free citizen, to charge him as accessary, would, in effect, be depriving him of the benefit of a trial by jury.
On the other side, in support of the indictment, it was answered, that it is not necessary to set out the conviction of the principal in an indictment against an accessary ; and that the accessary can as well take advantage of any matter of fact or law, to controvert the guilt of the principal, when the conviction is not set forth, as when it is. That although the principal should be erroneously convicted, yet the accessary shall be put to answer, and shall not take advantage of (he erroneous proceeding against the principal. Mack-alley’s case, 9- Rep. 69. And as to the objection, that a white man cannot bo accessary lo a crime committed by a negro, it ought not to prevail. Such a principle would be very mischievous. A white man might contrive the death of another, by means of a negro, and escape unpunished.
Ill reply to this last argument, it was said, that where a white man should cause a murder tó be committed by the agency of a negro, the white man might bo prosecuted and convicted as principal, in like maimer, as if he had occasioned the murder by the instrumentality of a beast. And though the negro might also he punished as principal under the act of assembly, yet the impropliety and evil consequence of such a principle and practice in our law, would not be, by any means, so great, as if the doctrine now attempted to be established, should prevail.
By the court.
Waties, J.
I am sorry for the necessity which obliges me to decide on the important questions now submitted-to *8the court, without an opportunity for more deliberate consideration-. In my judgment, however, which has been hastily formed, during the present discussion, with respect to the first objection, there does not appear to be any absolute necessity, by the general rules oflUw, that the conviction of the principal should bé recited in thfe indictment against an accessary; for tho conviction makes no part of the crime. The proof of the conviction of the principal is not sufficient evidence of the crime as tó the accessary; and it may be controverted as to the principal, in order to exculpa fe the accessary„• Therefore, it is only matter of evidence ; and whatever is but evidence, need not be laid in the indictment. The reason why it may be necessary to set forth in an indictment against an accessary the previous conviction of the principal, is fó guard against the mischief of several indictments for the same offence. But there can be no such danger here'.
Falconer and Johnson, for the prisoners."Mr. Solicitor Dray-ton, for the State.
As to the other objection, I am of opinion the-doctrine contended for, by. the prisoners’ counsel, is not well founded, but pfégnant with dangerous consequences to society, 1 do not agree with the proposition, that a negro slave is not contemplated by our law as a person entitled to social rights. Negroes are under the protection of the laws, and have personal rights,-and cannot be considered on a footing only with domestic animals. They hatlo wills of their own — capacities to commit crimes ; and aro responsible for offences against society : and in a case lately determined in Charleston, it was decided in the case of a riot, where two white men, only, were concerned, together with one négro, that a negro was a person sufficient to satisfy the legal definition of a riot.-
So the objections were overruled.