State v. Blythe, 18 N.C. 199, 1 Dev. & Bat. 199 (1835)

June 1835 · Supreme Court of North Carolina

18 N.C. 199, 1 Dev. & Bat. 199

THE STATE v. ZACHARIAH BLYTHE.

An indictment under the act of 1826, c. 13, charging that the defendant, on a particular day, and on divers other days before that day, sold and delivered spirits to certain slaves whose names were to the jurors unknown, is defective for uncertainty in embracing the transactions of divers days with divers persons. And as the names of the slaves were not given, it is also defective for not stating the owners of the slaves, or averring that the owners were unknown, if the fact were so.

This was an indictment in the following form.

“ The jurors for the state upon their oaths present, that Zachariah Blythe, late of said county, on the twenty-sixth day of October, 1834, and on divers other days and times before said day, at and in the county aforesaid, did unlawfully traffic with, sell, and deliver to certain negro slaves, whose names are to the jurors as yet unknown, a a quantity of spirituous liquors, not having then and there any written authority from the owners of said slaves to sell and deliver the spirits aforesaid, contrary to the act of the General Assembly in such case provided, and against the peace and dignity of the state.”

The defendant- being convicted of the offence charged in the indictment, a motion in arrest of judgment was submitted by his counsel, which being sustained by his Honor Judge Norwood, at Northampton, on the last Circuit, the Attorney-General appealed.

The Attorney-General, for the state.

Badger, for the defendant,

objected, that the indictment was defective for uncertainty and indefiniteness;

1st. Because it charged the selling to be to a number of slaves in gross,on a certain day and divers other days, whereas it should have been for one act of selling to one or many slaves, or for frequent acts of selling to one slave.

2nd. Because the slaves to whom the spirits were sold were not specified, either by their own names or by those of their masters, and no good reason was stated for the omission. He contended, in support of this objection, that the names of the owners of the slaves should have been charged, because that knowledge might have been of service to the defendant in his defence, but if the names of the owners were unknown, then that fact should have been distinctly averred in the indictment.

Ruffin, Chief Justice.

— -We concur in the opinion given by the Judge of the Superior Court, that the indictment is defective, and that the judgment must be arrested. It charges, that the defendant, on a particular day, and on divers other days and times before that day, sold and delivered spirituous liquors “ to certain slaves, whose names to the jurors are as yet unknown.”

Every indictment ought to have convenient certainty as to time, place and persons; and give to the accused reasonable notice of the specific facts charged on him, so that he may have an opportunity of defending himself. Here the indictment conveys no information of that sort. It is not confined to a single joint sale to several persons, but embraces the transactions at large of divers days with divers persons. It is like an indictment in one count for divers distinct assaults and batteries on several persons at different times. To such a complication of separate accusations, the defendant ought not to be obliged to answer; and in this case he could not form the least conjecture of the facts to be proved against him, nor those to which he should prepare evidence.

Besides that, we think the indictment does not sufficiently identify the slaves. It it true, the defendant might,- by proper averments upon a second indictment, show the identity of the slaves mentioned in both. But he ought not to be put to greater difficulty in sustaining his averments than is unavoidable. Here the description is barely that of being slaves, the names of the slaves not being given, nor their sex, nor the name of the owner, nor any other mark of identity. From necessity, indictments, alleging the name of a person to be unknown, are sustained when they are really unknown. But in general, the name must be given, and always, unless it be stated to be unknown. The Christian name alone will not suffice, unless the occupation or station be added, so as to identify the person from all others, as in the case stated in the books, John, Priest of A. As slaves have only one ** - name in general, that alone may be sufficient when stated. But it is by itself not very satisfactory, because there is a more perfect mode of identifying the person, by stating him to be a slave named A., the property of a particular person, so as to distinguish this from other slaves of the same name. That is the usual method of describing a slave in ordinary transactions, as well as in legal proceedings. For this purpose, proof of reputed ownership would probably support the allegation. But although it may not be necessary to state the owner, where the slave is described by his name, yet where the name of the slave is not given, and cannot be given, because unknown, he may to some extent be identified by stating whose property he is. That is a step towards distinguishing the particular person, and would not leave the proof at large of any and all slaves. It is not doubted, that the indictment would be good, if it alleged the name of the slave, and the owner of the slave, to be both unknown. But the indictment ought so to state as to both facts; and we think it is but demanding reasonable precision to a common intent, to require the property to be set out, as part of the descriptio per-sones, when the name of the slave is unknown. If neither the property nor the name be given, as each goes equally to the identity, the excuse for not doing so ought to appear in the indictment, by the statement that the former was unknown, as well as the latter. That allegation is as proper and necessary as to one part of the description, as it is in respect of the other.

Per Curiam. Judgment affirmed.