American Republican And Baltimore Daily Clipper

BALTIMORE CITY COURT.

Present—Judges Brice, Nisbet and Worthington.

Monday, Dec. 23, 1844. The case of the Rev. Chas. T. Torrey, convicted for abducting three slaves, the property of Mr. Heckrotte, of this city, came up before this court, on the motion of counsel for an arrest of judgement and petition for a new trial.

Reverdy Johnson, Esq., senior counsel for the defence, in opening the case, said he had nothing to urge in reference to a new trial; for, as far as the evidence went, upon which his client had been convicted, it was of such a character as to preclude the hope of a different result if a new trial should be granted.

In the first place, therefore, he proposed to examine "the sufficiency of the indictments."

The counts in the indictments charged the offence against "Charles T. Torrey," but did not specify whether he was a 'freeman' or otherwise, as called for by the letter of the law of 1827, under which he was indicted. The law recognising the broad distinction between freeman and slave—the former being liable to imprisonment, and the latter to be whipped. The question, he contended, then arose, whether the court could go out of the indictment, in rendering its judgement, affixing the penalty. With a view to avoid the infringement of the rights of the citizen, it is important that all points at issue should be determined by that tribunal supposed to be the most competent to decide upon them; and not to leave them to the discretion of the court, whose power it is to affix the penalty. The laws of Maryland, he contended, properly recognized color as implying slavery; but when it is known that in many cases the two classes were so intermixed as to render it impossible, from mere observation, to determine their classification, who was to decide to which the prisoner belonged? There was no written or other evidence, to show whether the party involved is a freeman or a slave.

Mr. J. suggested that, looking to this view of the case, a jury, in the case of life and death, might find a person guilty, under the impression that he was a slave, and liable to banishment; while at the same time, the Court, believing him to be a freeman, might consign him to death. There might be, he argued, intervening positions between a freeman and slave—in which, if free, to be imprisoned; if a slave, to be whipped or banished. The province of the Court was to pass judgment in accordance with the verdict founded upon the indictment.

Mr. J. contended that the Court had no power to pronounce judgment, under the 2d section of the act of 1827. It was a matter for the magistracy. In the distribution of power among the Courts of the United States, it was made obligatory that parties suing and being sued—or in other legal action—to set out in the instrument the State to which they respectively belong. It was necessary that all points should be definitely averred, and affirmatively passed upon by the jury. If, therefore, the prisoner has been arraigned and tried under a defective indictment, the Court had no right to pass sentence.

Mr. J. said he would next proceed to discuss the last question at issue. At the time of empannelling the jury, in this case, it was agreed that the prisoner should be allowed the benefit, if found guilty, of contesting the power to hold him responsible for three separate acts of offence as contemplated by the State's Attorney in arraigning him under three distinct indictments. He denied the right of the Prosecutor to send in three indictments. They were based upon one presentment. That presentment charged the prisoner with having "enticed, persuaded and aided" the slaves at one and the same time to escape; hence but one offence was committed. In a case of ordinary larceny, where a person steals three pieces of cloth—three bank notes—or three watches, the Prosecuting Attorney could not arraign the party for stealing three watches under three distinct indictments, for the law recognises it but as a single offence; and making the party, upon conviction, liable to the penitentiary for ten years. But if it be in the power of the Prosecuting Attorney to multiply the indictments, he may be rendered liable to thirty years' imprisonment; and thus you place the liberty of a citizen at the disposition of the officer and not the law.

There was another consideration, which he conceived as conclusive upon that point. In thus giving the Prosecuting Attorney power to multiply indictments, when there is but one offence, the rights of the party accused might be greatly endangered, if not seriously abridged; inasmuch, as after a party should have been arraigned, tried, and acquitted, he might be again put upon his trial, before a new jury, when the constitution declares that "no person shall be put upon trial a second time for the same offence." In the present case, if Torrey had been acquitted by the jury who tried him, under the Prosecuting Attorney's opinion, he would have been put upon another trial; and if again acquitted, that officer, not satisfied with the decision, might have caused the city to have been ransacked to find a jury to try him a third time. And, admitting this principle, the life and liberty of citizens might be greatly endangered, contrary to the humane provisions of the constitution and the laws. He could not be understood as reflecting in the least, in any thing he said, upon the action, or motives of the State's Attorney, but merely spoke in reference to the principle at issue.

George R. Richardson, Esq., State's Attorney, thought that the counsel for the defence had entirely mistaken the hypothesis of the case. He believed that the abducting of three slaves constituted three distinct violations of the law of 1827. In cases of theft, indictments could not be multiplied when the property alleged to have been stolen belonged to the same person; but if a person steal a hat from one, a pair of shoes from another, and so on, he must be indicted for each offence separately; but in the case of Torrey, the property alleged to have been stolen consisted of three human beings, upon whom distinct means may have been used in committing the offence. He referred to the law as declaring that any person guilty of "enticing, persuading, or aiding, slave or servant"—using the singular "to run away, shall be punished, &c." Thus clearly making, as he conceived, each act a separate offence. He read authorities for the arraignment under different indictments; and cited cases from the English Courts, one of which was, that a person having been arraigned for killing two pigs under separate indictments, and having been put upon trial and found guilty of one, it was considered unnecessary to try him upon the other; and felt no doubt as to these authorities substantiating his position.

Mr. R. thought the objection to the indictment, because of its not averring the traverser to be a freeman or a slave, was of no avail. The offence was the same; and the distinction was only made with a view to the penalty. The party in this case, by the simple act of his coming into Court for trial, signifies the right to try him as a freeman; and he thought it was too late now, to make such a plea, after the finding of the jury. Mr. R. contended that the whole ground of objection was met by the indictment itself, which declared that upon a certain day, "Charles T. Torrey, late of the city of Baltimore, yeoman," had committed the offence of which he had been found guilty. He read from Blackstone and various lexicographers to define the term yeoman—which declared it to mean 'a person entitled to serve on juries and to do other acts as other free-born citizens;' and also to designate in England a certain grade in society. The term, he contended, was recognized in Maryland, where no distinction of classes was known among her citizens, to designate freeman in its broadest sense. In the eye of the law the two terms were synonymous; and while the phrase yeoman was common to indictments of white persons, the words slave or free were used in indicting negroes.

The counsel for the defence having said nothing about a new trial, he should rest the matter here for the present.

Mr. Johnson said he had made the issues in good faith, and should say nothing more but for the precedent they would establish. He felt no disposition to seek a new trial, for he could not hope for a different result, should it be granted, upon the ground of the omission of the term freeman, but he expressed much solicitude in reference to the other point, as it involved the period for which his client was to be incarcerated.

Mr. J. here asked permission to digress for a few moments, from the point at issue. He feared that in his position as counsel for Torrey, he would be regarded as holding opinions in common with him; indeed, he had already heard that the gentlemen Reporters for the papers had so represented him. He spoke in strong terms of the movements of the abolitionists, as being calculated to create intestine war, with all its horrors; and declared himself to be a firm adherent to the doctrine of the author of the Declaration of Independence, upon the subject.

[Note by the Reporter—The brief statement of Mr. Johnson's speech, before the jury, in this case, as published in this paper, at the time, will not authorise such an inference. What is said, however, in that report, cannot be gainsayed. We presume the impression may have originated, if not positively stated, in the correspondence for distant papers.]

Mr. J. returning the subject at issue, spoke of the right to put in the plea of error of indictment or demur at the finding. The term yeoman he thought very indefinite. Though technically the plea of a traverser to be discharged from the second indictment because he had been found guilty under one or two indictments against him might not avail; yet with a view to the rights of freemen, the law having been avenged in the first finding, it was competent to set aside the other indictments. He went into an argument to show that, if the offence was committed, it was a single act, as the slaves went together, and were afterwards seen together, throughout the whole transaction. The words of the statute, being in the singular "any slave or servant"—was but the formal term used in such cases. He urged the danger of admitting the power to exist in the Prosecuting Attorney, to speculate with the rights of the citizen, in allowing him to so divide his indictments, as to defy the merciful traits of the law which says no person shall be tried a second time for the same offence. The issue was of importance to the prisoner inasmuch as the point contended for would submit the prisoner to six years imprisonment, while the Prosecutor, if successful, would incarcerate him for eighteen years.

Mr. Richardson, followed in a few statements of facts and reference to authorities. The arguments were then submitted to the court.

After a brief consultation among the judges, Chief Judge Brice remarked that with a view to give the subject a fair investigation, the court would deliberate upon it, and file their opinion during the week; and that on Saturday next, it would be delivered in the presence of the prisoner.

Should the court set aside the prayer of counsel, Torrey intends making his defence. He has prepared quite a voluminous speech, and we have no doubt, though he will make some strange points, it will be delivered in quite good style, as he is a scholar and educated to declaim in a better cause than that in which he has foolishly sacrificed his liberty.