Eliza v. State

JUDGE, J. There is no bill "of exceptions in this case ; and it does not appear, except by inference from one count of tbe indictment, that the prisoner was ever a slave. That count describes her as a “freedwoman of color”; and this, it is contended, is an admission of the fact, that she was one of the class known as freedmen, who had been emancipated by the war. We will take this hypothesis to be true, as it does not affect our decision of the case. The prisoner appears to have been indicted under section 3173 of the Code; and this section having been promulgated as not applicable to slaves, it is contended that it is not applicable to freedmen, as the change of status does not so operate on the law as to give it a new meaning, and a new promulgation. It was intended in the construction and arrangement of the criminal code of this State, that every person who might commit crime, no matter to which of the different classes of persons in the State he might belong, should not escape punishment for the want of a law to reach his case. Accordingly, provisions Were adapted respectively to slaves, to “free persons of color,” and to all other persons; and although the results of political convulsion and war have, to some extent, destroyed its symmetry and consistency, yet, in the main, it is still adapted to the punishment of crime, in all classes now existing. It was framed to operate through all time, unless abrogated or repealed; and to operate upon all persons who might at any time come within its influence, either by birth, by immigration, or otherwise. Doubtless it was not contemplated, at the time of its adoption, that one class, then existing, would cease to exist as a class; yet, on the happening of that event, the persons who composed the defunct class, eo instanü, became persons of another class provided for; and thus becoming of this other class, there is, as to them, no hiatus. Emancipation changed their servile status; but, on becoming freedmen, they remained as persons; and as persons they are amenable to the existing laws. [696] The fact that this class have not become free, by their own seeking, but by a political convulsion, in which they took no part, can not affect their amenability to the laws. If a vessel should be wrecked on the coast of the State, and the crew be compelled to seek refuge and protection within its limits; while in the State they would certainly be amenable to its laws. And yet it might be said of them, as it is of the freedmen, that they were forced, by an overpowering necessity, under the influence of the laws, and that there could have been no knowledge, or legislative intention in regard to them, when the laws were passed. Again, it has occurred more than once, in the history of the State, that slaves have been emancipated by their owners, and afterwards, by special legislative enactment, been permitted to reside in the State; and yet, it has never been supposed, as we are aware, that these freedmen were not under the influence of the criminal laws applicable to free persons of color. But it is contended, that the criminal statutes of the State, now of force, were promulgated in such manner, that they are not now applicable to the freedmen who were slaves when they were promulgated ; and that section eight of the bill of rights declares, that “no person shall be punished, but by virtue of a law established and promulgated prior to the commission of the offense.” It has been repeatedly held by this court, that all statutes are in force from the date of their passage, when no time is fixed for the commencement of their operation; and this is the rule of the common law, and is applicable to criminal as well as other statutes.—Weatherford v. Weatherford, 8 Porter, 174; The State v. Click, 2 Ala. 26; Thompson v. Stickney, 6 Ala. 579; Bank v. Murphy, 8 Ala. 119; see, also, 1 Bishop’s Criminal Law, § 59. When, therefore, a criminal statute has been passed, it is “established and promulgated” within the meaning of the bill of rights. [2.] In looking into the record in this case, we find a fatal error, which must reverse the judgment below. In the judgment-entry, it does not sufficiently appear that the prisoner was personally present in court, when she was tried and sentenced. The entry recites, that “this day [697] came S. A. M. Wood, solicitor, and tbe defendant,” <fcc.; and it also recites, “that sbe be taken hence to tbe jail of Tuskaloosa county,” &e. These recitals are not sufficient to make it affirmatively appear that tbe prisoner was present in person, both during tbe trial, and at tbe time of tbe sentence. Tbe rule is well settled, in England, and in this State, and is inflexible, that a prisoner, accused of felony, must be arraigned in person, and must plead in person; and in all tbe subsequent proceedings, it is required that be shall appear in person.—2 Leading Crim. Cases, and authorities there cited; Young v. The State, decided January term, 1865. In Dunn v. The Commonwealth, (6 Barr,) tbe following recital in tbe record was held to be insufficient evidence of tbe personal appearance of tbe prisoner, at tbe passing of tbe sentence: “Tbe court sentenced George jDunn, tbe defendant, to be taken to jail, <fcc., from whence you came,” &c. In Scaggs v. The State, (8 Sm. & Mar. 722,) it was held, that tbe prisoner’s presence could not be inferred from a recital that be asked a witness certain questions; as they may have been in writing. In tbe ease at bar, tbe prisoner may have appeared by attorney; and it is not permissible to resort to argumentative inference, to ascertain that sbe appeared in person: that must clearly affirmatively appear. For tbe error above named, tbe judgment must be reversed, and tbe cause remanded; and tbe prisoner must remain in custody, until discharged by due course of law.