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Sam, a slave, v. The State.

D. C. Glenn, attorney-general, for the state.

1. So far as regards the time and place where the court was holden, see Pamp. Acts, Ses. 1846, incorporating Tallula, and also 3 S. & M. 518.

2. In regard to the admissibility of the jurors, I refer the court 10 2 Leigh, 769; 3 Stewart, 454; 4 Dallas, 513; 3 Vermont, 578; 3 Leigh, 785; 9 Ib. 651 ; Ib. 661; 3 Kelly, 634; 5 Rand. 660; 7 Iredell, 61; 2 Va. Cases, 375; 4 How. 330; 5 Ib. 730.

Mr. Justice Clayton delivered the opinion of the court.

The first question to be noticed in this case, arises on the two pleas in abatement of the defendant. The first is, that at the term of the court, at which the bill of indictment was found, the court was not held in the court-house of Issaquena county. The second is, that Tallula, the place at which said court was holden, was not at that time the county seat of the said county. To each of these pleas a demurrer was filed.

The act of 1846 establishes Tallula as the seat of justice of Issaquena county. An act passed in January, 1848, authorizes the board of police of that county “to remove the then location of the county seat of said county," to some other place which they might select. Pamp. Acts, 220. The indictment in this case was found in April, 1848. Whether the board of police had in fact changed the location of the county seat before that time, is not shown by any testimony in the record. But the demurrer admits the fact, that the court was not holden at the county seat. In the case of Carpenter v. The State, 4 How. 168, it was decided, " that it must appear from the record, that the court was holden at the proper place within the county." The same is taken to be the established law in Kelly et al. v. The State, 3 S. & M. 524. The caption of the indictment in this case states, that the court was holden at Tallula. If it were not for the act of 1848, this state of facts would have existed, the caption of the indictment would have shown that the court was holden at the place appointed by law, and the demurrer to the plea would have admitted the reverse. But this difficulty is obviated by the statute of 1848. It was error

Sam, a slave, v. The State.

in the court to sit at any other place than the one designated by law; and as it stands admitted upon the record, that it did so, the judgment upon the second plea in abatement should have been, that the indictment be quashed. Had issue been taken on the plea, the question would then have rested upon the fact.

Another error assigned is, the admission of two jurors upon the trial, who are alleged to have been incompetent, by reason of partiality. Although the case must be reversed on another point, yet, as this was elaborately discussed in the argument, we have thought it but proper to give our opinion upon it.

The objection to each of the jurors is very much the same. The one had formed his opinion from the rumors he had heard ; the other from the arguments of counsel to which he had listened on the previous day, upon the trial of an accomplice of the prisoner for the same offence, and in which the witnesses were the same. Each stated he had formed and expressed an opinion; one said his mind was clearly made up from rumor, each thought he could decide the case from testimony free from bias, but both thought it would require some testimony to remove the impression from their minds.

The great value of the trial by jury, consists in its fairness and impartiality. A right of trial by such a jury, is secured to every one who may be accused, by the constitution. It is the duty of the court to see that an impartial jury is empannelled, and that it is composed of men above all exceptions. Lewis v. The State, 9 S. & M. 119. In a civil case this court reversed a judgment, because one of the jury had expressed a strong opinion before the trial, but had denied it when questioned. The court remarked, “ that the sanctity of the trial by jury, requires that the jury should be impartial and unbiassed." Childress v. Ford, 10 S. & M. 30. The same reason applies with much greater force in a capital case.

This rule appears to be simple, yet it is often found to be difficult in its application. A man is impartial whose mind is not inclined either to the one side or the other. He is partial when it has taken a direction either in favor of or against a prisoner. That direction may be so slight, as to constitute no

Sam, a slave, v. The State.

impediment to the arriving at a just conclusion. It may be so strong as not to let the judgment have fair scope, and to close the avenue to the admission of a conviction opposed to the preconceived opinion. In the one case the juror would be competent, in the other not. It is the nature and character of the opinion, on which his competency must depend; not the source from which the opinion has been formed, nor its having been expressed or concealed. The belief of the juror, that he can do justice, can have but little influence in determining his competency. The presumption of law is against his competency, when a decided opinion, as to the guilt or innocence of the prisoner, has been formed.

The supreme court of Tennessee thus laid down the rule : “If it appear to the judge, who under our system is the trier of the competency of the juror, that he has heard the circumstances of the case, and believing the statements he has heard to be true, has formed, or has formed and expressed an opinion, that is, has made up his mind as to the guilt or innocence of the prisoner, he ought to be rejected.” McGowan v. The State, 9 Yer. 193; Payne v. The State, 3 Humph. 376. The court manifestly felt the difficulty of laying down any rule, which would be free from ambiguity, but adopted this as the best definition of the principles, on which the question of impartiality must turn.

We cannot but be sensible of the same difficulty. If a juror were offered, who had already heard all the testimony, and made up his mind from it, beyond all doubt he would be incompetent. On the other hand, if one were offered, who had formed only an hypothetical opinion from rumor, and who at the same time declared, that he could render an impartial verdict, it would be equally clear that he was competent. Between these two extremes, there is a wide space, in which it is perhaps impracticable to lay down any very definite general rule. The juror ought to be equal between the parties; if he be not, the verdict is liable to some degree of suspicion, and the purity of the administration of justice be thus called into question. Every case, however, must depend in some degree upon its own

Sam, a slave, v. The State.

peculiar facts. Circumstances may exist, which would render a departure from a rule necessary and unavoidable, which in a different state of case would be inflexibly adhered to. In some cases of very great notoriety, and of general concern, it might be impossible to find men in the vicinage, who had not formed some opinion of the matter. The recent Astor place riots and murders in New York, referred to in argument, are of this character. In such cases, some modification of the doctrine may be imperatively required. The rule must yield to the necessity, but only so far as the necessity demands. 1 Burr's Trial, 419. Yet the more nearly we approach the point of entire freedom from preconceived opinion, and of completo equality between the parties, the more nearly we approach the perfection of the system of trial by jury.

In this case there was no necessity for any exception to the general rule, which requires the juror to be indifferent. We do not think these jurors came up to that standard. They both stated it would require testimony to remove the opinions they had formed. They did not, therefore, stand equal between the parties, for if they did, they would require testimony to convict, whereas, if their opinion were adverse to the prisoner, they would now require testimony to acquit. This reverses the benign rule of law, which presumes innocence until guilt be proven.

We shall not attempt to lay down a rule of universal application, upon a subject so hard to place within precise limits.

In consequence of the error in the decision upon the demurrers to the pleas in abatement, the judgment will be reversed, the indictment quashed, and the prisoner remanded to the county of Issaquena, for farther proceedings according to law.

Steele v. Shirley.

CLAIBORNE STEELE vs. JAMES SHIRLEY.

A writ of error lies from the decision of a circuit judge, sitting on the trial of

a writ of habeas corpus for slaves alleged to have been taken “out of the possession of the master or owner by force, stratagem or fraud ;” but an

appeal does not lie. The writ of habeas corpus for slaves, at the instance of the owner, is allowed by

the statute, when the slaves are “taken out of the possession of the master or owner by force, stratagem or fraud, and unlawfully detained ;” if, therefore, it appear on the trial of such a writ, that the slaves were not so taken by either force, stratagem or fraud, the judge will have no jurisdiction of the

case, and the petition must be dismissed. S. sued out a writ of habeas corpus against C. S., alleging that the latter had

taken certain slaves of the foriner out of his possession, he being the owner by force; on the trial of the writ it appeared that C. S., as sheriff, had taken the slaves under the fiat of the chancellor and process from the chancery court in the suit of M. against S., and held them in custody by virtue thereof, until the jail fees amounted to $ 140 ; when S. presented him an order from the chancellor for their release, C. S. refused to deliver them until the fees due were paid him ; upon which S. sued out the writ of habeas corpus : Held, that the facts did not justify the issuance of the writ; the sheriff took the slaves in obedience to the order of a court of competent jurisdiction, and did not detain them unlawfully when he held them to enforce the payment

of fees allowed him by law. It seems that a sheriff has by law a lien upon slaves committed to his jail, for

their jail fees, and has a right to retain the slaves for their payment; but if there are several slaves so committed, upon the order for their release, should only retain a sufficient number, of value to pay the fees.

he

On the 10th of August, 1847, the Hon. George Coalter, judge of the third judicial district, granted a writ of habeas corpus on the petition of James Shirley, requiring Claiborne Steele to bring seven slaves before the judge, which the petitioner alleged Steele forcibly took out of his possession and unlawfully detained. The writ was returnable on the next day at the court-house of Warren county, and was directed to and executed by the coroner.

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