STARR vs. THE STATE

STARR vs. THE STATE. 1. An indictment (under tlic Code) for trading rviih a flare, is fatally defective, -alien the fiareis described as “ o, slave, the property of Benajah S. Bibb, whose name is to the jury unknown.” From the Circuit Court of Montgomery. Tried before the Hon. Robert Dougherty. Daniel Stare was indicted for trading with “ a slave, the property of Benajah S. Bibb, whose name is to the jury unknown.” He pleaded not guilty to the indictment, but was found guilty by the verdict of the jury, and fined ¡¿200. The questions of law reserved for the consideration of this court, appear from a bill of except ons which was taken on the trial, and arise upon the charges which the court gave and refused. Elmoee & YaNCEy, for the plaintiff in error : Each count in the indictment is defective, in not naming, or in some other way describing, the slave with whom the defendant was guilty of trading, so as to notify him with what1 slave he was accused with trading (Francois v. The State, 20 Ala. 83), or to enable him, on a subsequent indictment for the came offence, to plead a former conviction or acquittal. — Murphy v. The State, 24- Miss. 599. The only difference between this case and that of Francois v. The State, supra, is, that there the name of the owner was not alleged. This fact, however, did not affect the decision, as the allegation was omitted under the act of February 7, 1850. The allegation of the owner’s name is no description of the slave. The owner may have hundreds of slaves: and the defendant may have written permission to trade with, some of them, and verbal permission to trade with others. The owner may have several plantations with a different overseer on each ; and these overseers are authorized to grant permits to trade with the slaves. Which one of these overseers shall the defendant summon? The slave may have been hired out by the owner. The allegation of the owner’s name gives the defendant no clue by which to ascertain whether he must summon the owner, or the hirer. P. T. Sayse. for the Attorney General, contra : No question was made in the court below of the sufficiency of the indictment, and none is reserved upon the record : there was no demurrer, and no motion in arrest of judgment. This court can only consider the questions reserved : if the defendant wished to present any other questions than those reserved by bill of exceptions, he ouglit to have applied for a writ of error. But the indictment is good. The allegation of the owner’s name is a sufficient description of the slave. The slave’s name is not an essential ingredient in the offence : it is only necessary that the description should be sufficient to advise the defendant of the offence with which he is charged, and to enable him to defend it. The Code (§ 3513) authorizes the allegation that the slave's name “ is to the jury unknown,” and it could be done, also, by the common law. — Francois v. The State, 20 Ala. 83. [MAJORITY — LIGON, J. —] LIGON, J. — The charge in each count in this indictment describes the slave with whom the defendant is averred to have traded, and from whom he received the commodity mentioned in the indictment, a® “ a slave the property of Benajah S. Bibb, whose name is to the jury unknown.” This description is too general to require the defendant to be put to his answer of the charge. Benajah S. Bibb may be the owner of many slaves ; and it would be impossible for the defendant, under a charge so general, to prepare his defence safely and effectively, fie may have authority from the master or overseer of the slaves of Mr. Bibb to purchase from some of them the commodity mentioned in this indictment, and this authority may be verbal, for the law authorizes it to be given in that form. The dealing may have been with one of these ; and if the defendant wore advised with which of Bibb’s slaves he was accused of trading, he might be able to show that ho did so under full authority, previously obtained, for that purpose. Again ; we cannot well see how this defendant could defend himself against a second charge for the same offence. No day is required to be laid in the indictment; the name of the master does not ascertain the slave ; and without something more definite than what is found in this record, we can see no reason why the defendant could not be again convicted of tbe same offence, and thus be twice punished for the same crime. In the case of Francois v. The State, 20 Ala. 83, we held the indictment to be bad for uncertainty. The charge there was, selling “to a slave whose name is to the jurors unknown.” In Brown v. The Mayor and Aldermen of Mobile, 23 Ala. 722, the proceeding was to recover a fine under an ordinance of the city of Mobile against trading; with slaves, the terms of which are similar to our statute. The statement filed did not contain the name of the slave, or of his owner; both were in blank. . We lield the statement bad for uncertainty. In the former of these cases, it is said, “We wonld not, however, be understood as deciding, that it was absolutely necessary to describe the slave, in indictments for this species of offence, by his name. This is but one mode of description; and any other, which would afford to the defendant information as to the particular slave to which the charge referred, we are inclined to think would be sufficient.” That there may be cases, in which the requisite certainty may be attained without naming the slave, we admit; for instance, if the owner’s or employer’s name is given, and it be averred that the slave is the only one in his possession; or that the slave is employed in a particular service, and he is the only one so employed by him; in either of these cases, we are inclined to think the indictment would be good. But unless certainty is approached by some such averment, the defendant should never be put to his defence.” Let the judgment be reversed, and the cause remanded; and the defendant remain in custody until discharged by due course of law.