Pike County MsArchives Court.....State, Vs. Isaac McGraw 1834
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 2, 2008, 7:35 pm

Source: Reports Of Cases - Mississippi
Written: 1834

December Term 1825.

THE STATE OF MISSISSIPPI vs. ISAAC McGRAW.

Indictment for stealing a slave referred from Pike Circuit Court.

An indictment for stealing a negro man, not called a slave, is insufficient. A 
trial and acquittal on an indictment for stealing a negro man, is no bar to a 
subsequent prosecution for stealing a negro man slave. A conviction or 
acquittal or an invalid indictment, is no bar to a second prosecution.

OPINION OF THE COURT BY THE HON. EDWARD TURNER.

It appears by the record, that at the October Term 1823 of Pike Circuit Court, 
the defendant was indicted for stealing a negro man, on which charge he was 
tried on the plea of not guilty, and acquitted. At the same term he was also 
indicted for stealing one negro man slave, named Emanuel,&c. of the goods and 
chattels of one William B. Heath, &c. On his arraignment, he pleaded a former 
acquittal for the same offence, to which the state replied nul tiel record of 
a former acquittal; and the court doubting the law, referred the cause to this 
court, on the issue of nul tiel record.

It appears by the record that the district attorney appeared to a nol pros on 
the first indictment, and informed the prisoner and his counsel, that he 
considered that indictment invalid, and had preferred another: and submitted 
to them, whether they would risk a trial on the first indictment — whereupon 
the prisoner and his counsel would not move to quash the first indictment, but 
claimed a trial by jury — a trial was had, and verdict for the defendant.

I am of opinion that the first indictment was insufficient to warrant a 
conviction, and on which no sentence could have been passed against the 
prisoner. It charges the prisoner with having stolen a negro man, no where 
called a slave in the whole indictment; and it is obvious that the attorney of 
the state aimed at an indictment, under the statute, for stealing a slave. The 
authorities summed up in the first volume of Chitty's Criminal Law, p. 453 &c. 
show clearly, that a conviction or acquittal on an invalid indictment, cannot 
be pleaded in bar of a second, or subsequent prosecution. Wherefore, let 
judgment be entered for the state, on the issue joined on the plea of 
auterfois acquit; and it is ordered that the cause be remanded for further 
proceedings in the circuit court of said county of Pike.

Additional Comments:
Reports of Cases Adjudged in the Supreme Court of Mississippi; 1818 - 1832; 
By R. J. Walker, Reporter of the State. Natchez: Printed at the Courier and 
Journal Office, 1834.

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