State v. Clarissa

ORMOND, J. The offence for which the prisoner was indicted, is in the language of the act, an “ attempt to poison” a white person, which in the case of a slave is a capital : offence. The offence consists in the attempt to do an act, which if consummated, would have caused death, and cannot be committed but by the actual attempt to administer a poi-> sonous drug, or substance, calculated to produce death. An unexecuted determination to poison, though preparation was made for that purpose, or the actual administration of a sub [61] stance not poisonous, or calculated to cause death, though believed to be so by the person administering it, will not be an attempt to poison, within the meaning of the statute. From this analysis of the statute, it follows, that the indictment should allege, that the substance administered was a deadly poison, or calculated to destroy human life, as it is necessary that every indictment should warrant the judgment rendered upon it. Yet every allegation in this indictment may have been proved, and the life of the persons against whom the supposed attempt to poison was made, never have been in jeopardy; as it cannot be known as matter of law, that the seed of the Jamestown weed is a deadly poison. The moral guilt, it is true, is as great in the one case as in the other; but that is not the offence which the law intended to punish; but the actual attempt to poison, by means calculated to accomplish it. The attempt to purge the grand jury, as it is called, was wholly unauthorized. In the State v. Hughes, 1 Ala. 658, it was held, that the grand jury could not be asked," before they were sworn, whether they had not formed and expressed an opinion, as to the guilt or innocence of one whose case they would probably have to pass upon. Such was also the opinion of the court' in Tucker’s case, 8 Mass. 286. In Hughes’ case, supra, this court intimated, that challenges for causes, not operating a universal disqualification, might be made after the jury was elected and sworn. It was not intended by this suggestion, that the grand jury should be called at the pleasure of any one, expecting to have a charge preferred against him, and compelled to expurgate themselves of any supposed bias, but that after indictment found, the objection might be made. This was afterwards provided for, in the penal code, by restricting a plea in abatement to the array of the grand jury, or to the disqualification of any of its members, to the term at which the indictment is found. [Clay’s Dig. 458, § 51.] We are clear in the opinion, that no such right exists as that claimed in this case. Although the confessions of slaves, freely and voluntarily made, uninfluenced by threats or promises, must, as in the case of white persons, be received in evidence, it must be admitted; their condition in the scale of society, throws a [62] certain degree of discredit over any confession of guilt they may make, and renders it unsafe if not improper, to act upon such evidence alone, without other corroborating proof. But when a confession has been extorted by threats or punishment, or obtained by promises of favor, it would seem that no subsequent confession of the same facts, ought in the case of slaves, under any circumstances to be admitted, as even a recantation of what was once admitted, would be to expose the accused again to punishment. We need not, however, decide the general question, whether such subsequent independent admissions of the same facts, could in any case be competent, as it is clear those made in this case, should not have been received. The overseer, as it appears, some two or three days after the confession of the prisoner, made after- having received a severe whipping, inquired of her why she continued to give him poison, when she had seen him so near dying from the effect of it. This inquiry assumed the fact of her guilt, from her previous confession, and did not even in form, propose the question of her guilt or innocence, but merely demanded a reason for her conduct. To hold that the reply of a slave to her overseer, under such circumstances, was testimony of the fact, thus impliedly asserted, because it could not be denied, would be exceedingly improper. The humane policy of our law, would exclude such evidence, coming from a white person, and the reason is-much stronger for excluding it in the case of a slave. The judgment of the court below must be reversed, but the prisoner will remain in custody for another indictment, or until discharged by due course of law.