Wayne County NcArchives Court.....Cherry - Negro Slave, State V. 1819
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Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 January 12, 2009, 9:29 pm

Source: Nc Reports
Written: 1819

The State v. Cherry, a Negro Slave

From Wayne

January Term 1819

Under the act of 1811, ch. 6, an indictment for murder may be "intelligible 
and explicit," and contain sufficient to induce the "Court to proceed to 
judgment," if the time and place of making the assault, be set forth, although 
they be not repeated as to the mortal blow.

The indictment charged "that Abraham, a negro slave the property of John 
Howell, lat of the county of Wayne, and State of North Carolina, not having 
the fear of God before his eyes, but being moved and seduced by the 
instigations of the Devil, on the fourth day of November, in the year of our 
Lord one thousand eight hundred and seventeen, with force and arms, in the 
county of Wayne, and state aforesaid, in and upon Andrew Scott, in the peace 
of God, and the state, then and there being, feloniously, wilfully, and of his 
malice aforethought, did make an assault, and that the said Abraham with a 
certain axe of the value of ten pence, current money of the state aforesaid, 
which axe the said Abraham in both his hands then and there had and held, in 
and upon the said Andrew Scott, on the right side of the hear near the right 
temple of said Andrew Scott, feloniously, wilfully, and of his malice 
aforethought, did strike and beat, giving to the said Andrew Scott, by the 
striking and beating aforesaid, with the axe aforesaid, in and upon the right 
side of the head, near the right temple of him the said Andrew Scott, one 
mortal wound, of the dept of two inches, and breadth of ten inches; of which 
said mortal wound the said Andrew Scott then and there instantly died: &c., 
&c. And that negro slaves Ben and Cherry, the reputed property of said Andrew 
Scott, were then and there each of them present, and did then and there 
feloniously, wickedly, and with malice aforethought, aid and abet the said 
Abraham in feloniously assaulting and striking the said Andrew Scott as 
aforesaid: &c., &c. And that the negro slaves Abraham, Ben and Cherry, 
feloniously, wilfully and of their malice aforethought, him the said Andrew 
Scott did kill and murder, against the peace and dignity of the State."

The prisoner was convicted, and a motion was made by Mordecai to arrest the 
judgment, for that the time and place of giving the mortal blow, were not set 
forth in the indictment; and the motion being referred to this Court.

Taylor, Chief-Justice: An indictment ought to contain a description of the 
offence, which the prisoner is called upon to answer, expressed with 
plainness, brevity and perspicuity, and accompanied with those essential 
circumstances which concur to ascertain the fact and its nature. In the 
statement of these and of their specification, great strictness has always 
been required in favor of life; to a degree, indeed, that in the opinion of 
sir Mathew Hale, it had become the disease and reproach of the law. I cannot 
think it possible that any man can read this indictment, without receiving 
from it the impression, that the assault, the holding of the axe in both 
hands, and giving the mortal blow, were all parts of one and the same 
transaction, and that the last mentioned act followed immediately. The assault 
is stated to have been on 4 November, and that "then and there" the negro 
slave Abraham held the axe in his hands, with which he struck the blow; but 
the "then and there" are not repeated as to the blow itself; If a person were 
asked, upon reading the indictment, when and where the blow was given, he 
would assuredly answer, "in the County of Wayne, and on the fourth day of 
November."

The circumstances of place and time are however particularly required by the 
common law to be annexed to the very fact of striking, not by intendment or 
construction, but by express words; in order that the offence may appear to 
the Court to have been done within their jurisdiction, and that the death 
should appear to have taken place within a year and a day, computing from the 
time the blow was given; and another reason as to the time, was, that the 
forfeiture of the land related to the day of giving the blow. That this was 
so, appears from Cotton's case, (Cro. Eliz. 739), which is expressly in point, 
and from which there has been no departure in any modern decision that I can 
find. 

By this case and the series of decisions to the same effect, to be found in 
Hale and Hawkins, I should feel myself conclusively bound, without being at 
liberty to scrutinize the reasons of them, were it not for our act of 1811, 
ch. 6, which provides that it shall be sufficient to all intents and purposes, 
that the indictment shall contain the charge against the criminal, expressed 
in a plain, intelligible and explicit manner, and that no bill of indictment 
shall be quashed or judgment arrested, for or by reason of any informalities 
or refinements, when there appears to the Court sufficient in the face of the 
indictment, to induce them to proceed to judgment. If this act of Assembly is 
not always to sleep in the Statute Book, it never can be called into operation 
more fitly than in the present case; for undoubtedly, the charge is set forth 
in a plain, intelligible and explicit manner. The propriety of resorting to 
this act in the present case is more evident, when it is seen in the books 
that the exception now taken has been yielded to only "in favor of life," and 
that it would not prevail in an indictment for a misdemeanor. This proves, if 
proof were necessary, that an indictment may be intelligible and explicit, and 
contain sufficient to induce the Court to proceed to judgment, without the 
time and place being repeated as to the blow, if they had already been 
connected with the assault.

I wish not to be understood as expressing an opinion that the act cures any 
radical defects in an indictment, or that the time and place, when and where, 
the fact was committed, are not an essential part of it; but I think they do 
appear by a rational and obvious construction of this indictment; and as it is 
only by a subtle and refined course of argumentation that the objection can be 
made perceptible to the mind, it is of that character which the act intended 
to cure.

Let the reasons in the arrest of judgment be overruled.


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