The mark of an advanced civilization is the rule of law, with the highest being the rule of law that protects life, liberty and property. Based upon this standard, the Confederate States of America embodied an advanced Christian civilization.
Accepting this truism goes a long way in understanding why the Confederacy has been demonized to the point of eradicating it from historical memory, as the current campaign against Confederate monuments and memorials make clear. However, it should be understood that the attacks against the Confederacy are battles in the larger war against liberty, property, and, if need be, the lives of individuals. It goes without saying that the above mentioned rule of law is disdained by those preferring the rule of men; a rule designed to curtail the liberty and expropriate property of individuals to the benefit of the ruling class.
The tar-baby in any defense of the Confederacy is slavery, which has segued into “white supremacy”. That issue will be addressed in subsequent Confederate case law. But for now, suffice it to say that linking the two, slavery with white supremacy is a gross over-simplification. First, black supremacy is the origin of Southern slavery. It was blacks and Asiatic Muslims on the African continent that enslaved and sold other blacks to the slave traders. Second, after subjugated as slaves the North American slave owners, black and white, had a property right in the labor of the slaves. The conundrum for the rule of law was that although slavery is morally reprehensible, it was legal. In other words, it was a political question not a judicial one.
Current public opinion equating the Confederacy with slavery/white supremacy dismally fails to recognize the core value of the Confederacy, that core value being the rule of law.
What is necessary, or at least interesting, is to consider the role of the courts in the Confederacy to operationalize a rule of law grounded in the protection of life, liberty, and property. Towards that end, I intend to occasionally post case law that epitomizes the Confederacy’s commitment to the rule of law.
The case law to be posted is from State supreme courts. Although the CSA Constitution provided for the establishment of a CSA Supreme Court, the CSA Congress failed to pass the enabling legislation. Learning from experience the pitfalls of centralizing judicial authority in such as court, especially during an intense war for independence, the Congress deferred to State courts.
The judges and justices on these State courts did not have lifetime tenure, but were held accountable to the people of the respective States through elections and political appointments. This is a significant distinction, because it manifests the reality that the rulings and opinions are grounded in the consent of the governed. Unlike the US Supreme Court that socially engineers from the bench, i.e., the rule of men not of law, Confederate judges and justices enforce the rule of law. This is not meant to imply that judges and justices inescapably respond to majority political passions. To the contrary; they represent that natural aristocracy well versed in constitutional and common law traditions, bound to influence the trajectory of political and cultural developments. That trajectory was favorable to fundamental rights, slaves included.
Although the case law posted will be edited to make it more readable for the non-lawyer, each case as posted should be read in its entirety. Doing so will give a much greater appreciation of what was lost at Appomattox. As tragic as that realization is, it should toughen the resolve to preserve the honor of those who struggled for Southern independence.
CATO, A SLAVE, PLAINTIFF IN ERROR, vs. THE STATE.
Supreme Court of Florida
9 Fla. 163 (1860)[Editor’s note: This case involves the alleged forcible rape by a slave of a white female. It should be kept in mind that the slave’s counsel were white trial lawyers, tried by white judges, and heard by white jurors. This case, which is not the exception in the South, puts to the lie the common narrative that slaves so accused would have been summarily lynched by a white mob. The trial judge’s instructions to the jury, in part, reads: “It is true that the prisoner is of the African race and a slave, but, so far as this trial is concerned, he has the same rights as a white man. All the rules of law which would apply to a white man, if put upon his trial for the crime of rape, must apply in this case. The laws of this State affix the death penalty to the crime of rape, whether it be committed by a freeman or a slave, and the evidence which has been placed before you has been brought to the test of the same legal principles and submitted to you under the same rules of evidence as would be invoked and applied if a white man were upon his trial.” These instructions dispel reams of academic lies that slaves were chattel property on the same level of livestock, without legal rights.
PRIOR HISTORY: This case was decided at Marianna; Appeal from Jackson Circuit Court.
The plaintiff (slave) in error was indicted for the offence of rape, alleged to have been committed upon Susan Leonard (prostitute), was tried at the October term, 1859, convicted and sentenced to be hanged on the 16th day of December, 1859. The defendant petitioned the the trial court for a new trial, which was denied. Counsel for the defendant petitioned the Florida Supreme Court for the conviction to be vacated on the grounds that there was insufficient evidence to support the conviction. The Florida Supreme Court the court vacated and annulled the conviction and sentence, and remanded for a new trial.
CORE TERMS: prisoner, carnal knowledge, woman, prosecutrix, rape, assault, indictment, negro, new trial, sworn, indicted, convicted, slave, prostitute, crime of rape, error assigned, special venire, intercourse, specially, omission, charging, bailiff, criminal law, simple assault, felony, perpetrator, violence, mulatto, deputy, lived
OPINION BY: Chief Justice DuPONT
Cato, a slave was indicted in the Circuit Court of Jackson county upon the charge of having committed a rape upon the body of Susan Leonard. At the October term, 1859, he was arraigned, tried, convicted and sentenced to be hanged on the 16th day of December thereafter. Previous, however, to the passing of sentence by the Court, the prisoner’s counsel moved for a new trial . . .
In entering upon the investigation of this case, the court is not insensible to the magnitude of the interest involved in the result of its conclusion and the weight of responsibility that rests upon it in the discharge of the functions of a court of review and of last resort. Hence we have given to the case that patient hearing, that careful examination, that anxious and deliberate investigation which its importance demands.
On the one hand, the record presents the fact that a most foul offence has been perpetrated–that the majesty of the law has been insulted by the commission of a most heinous and revolting crime that strikes at the very foundation of society. On the other hand, life–the life or a human being–is suspended upon the issue. It is true that the unfortunate individual who stands charged with the commission of the offence is one of an inferior caste–a slave. But it is the crowning glory of our “peculiar institutions,” that whenever life is involved, the slave stands upon as safe ground as the master. The same tribunals of justice are open to each–the same form of proceedings–the same safeguards that are extended to the one are fully and freely awarded to the other. Influenced by and impressed with these views, we now address ourselves to the consideration of the case as it is presented in the record. . .
We will, for the present, pass by the first and second errors set forth in the general assignment, which relate exclusively to the matter of the instructions to the jury, and proceed to consider the third in the series of errors complained of. That assignment refers to the mode which was adopted by the Clerk and Sheriff in executing the order of the Judge, which directed the issuing of a special venire, in anticipation of the trial of the prisoner. This point was earnestly pressed at the hearing, and the counsel for the prisoner commented at large and with much force and particularly upon the manner in which the law had been violated; but upon a careful scrutiny of the record, the court is unable to discover a tittle of evidence to sustain the assignment or to support the allegations and argument of the counsel. There is nothing said in the history of the proceedings which took place at the trial concerning the issuing of any order for a special venire, or even that there was any necessity to resort to one in order to obtain a competent jury for the trial of the prisoner. The only allusion made to the matter is to be found in one of the causes assigned in the court below as a ground for the granting of a new trial. It is very clear that its incorporation into the motion for the new trial, gives it no verity as a fact transpiring in the history of the trial. If the prisoner desired to avail himself of this alleged irregularity, he should have been careful to have taken such an action in relation to the matter as would have caused it to have been incorporated into the record as a fact. The assigning it as a ground for a new trial does not so incorporate it. The fact may or may not be as is alleged in the motion, and this court will not act upon mere presumption. The assignment is therefore dismissed, with the remark, that the same point is regularly made in the case of James O’Conner vs. The State, decided at this term of the court, to which case reference may be had for our ruling upon the point.
The fourth error assigned refers to the failure of the court to cause a bailiff to be specially sworn to attend and take charge of the jury while deliberating upon their verdict. It was insisted in argument that it was a fatal irregularity to al-low the jury to retire under the charge of the Sheriff and his deputy, who had not been specially sworn for the occasion. The record sufficiently shows that such was a fact in the history of the trial, and the court is therefore called on to rule upon the point as presented in the assignment. This point also arises in the case of O’Conner vs. The State, and being fully discussed and ruled in that case, it becomes unnecessary to discuss it here. It is sufficient in this case to say that the error is held not to be well assigned, and it is therefore overruled.
The fifth error assigned is in reference to the refusal of the court to permit the witness, Benjamin Stephens, to be interrogated as to his having had an illicit intercourse with the prosecutrix [female victim of a crime]. The design of the counsel for the prisoner in seeking to propound the question in the court below was to contradict a statement of the prosecutix, who had testified on behalf of the State, and thus to impeach her as a witness. We do not feel called upon, or even at liberty to consider the assignment, for, as in the case of the third assignment, it is not supported by an iota of evidence. The only mention made of it in the record is when it occurs as one of the grounds stated in the motion for the new trial. We therefore dismiss it also, without further consideration. The “bill of exceptions” is a great privilege accorded to a party, to cause that to be made a matter of record which would not otherwise appear in the history of the trial; and it is for him, therefore, to be careful to have incorporated into his bill whatsoever fact he may desire to rely upon as matter of error. Unless so incorporated this Court will not assume its existence, nor will they be induced to enter the field of mere conjecture.
The sixth error assigned is, that the verdict is against the law and the evidence, we propose to consider this assignment in connection with the first and second, which were passed by, and which related exclusively to the instructions of the Judge as given to the jury.
We will consider first the complaint that the Court did not charge fully as to the law of the case. It is insisted, in this connection, that the court having undertaken to charge on the law, it was its duty to have charged fully on the whole law, and that it was error in the Judge not to have instructed the jury that they were at liberty to find the prisoner guilty (under the indictment for rape) of an assault. The position is undoubtedly correct that if the Court assumes to charge at all, it ought to charge on the whole law. But it is also as well settled that if a party desires to avail himself of any failure or omission in this respect, he must call the matter to the attention of the court by a prayer for the instruction desired, otherwise he will not be permitted to assign it as error. In this case, the record does not show that any instruction of the kind was asked for. It is too much to expect of a Judge, in the hurry and confusion of a nisi prius trial [all legal actions tried before judges] that he should be able to retain in his mind every point of law that may properly bear upon the case, and hence the rule above indicated that no failure or omission to charge upon a particular point of law will be sustained as error, unless his attention be specially called to it. In considering this assignment, we are left somewhat in doubt whether the complaint is the failure to charge that the jury might find the prisoner guilty of an “assault with in-tent to commit a rape,” or whether that they were at liberty to find him guilty of a simple “assault.” If the former be the position intended to be assumed, then it is sufficient to say that the failure or omission so to charge can work no injury to the prisoner; for, by the statute (Thomp. Dig., 490 and 538,) in the case of a negro, the two offences are placed upon the same footing–they are both punishable by death. If, however, the latter be the position intended to be assumed, viz: that the jury might, under the indictment, have found the prisoner guilty of a simple assault, then there is presented for consideration a very grave question, which is not easily settled. All writers on criminal law seem to be agreed, that, as a general rule, if a party be indicted upon the charge of having committed a higher offence, he may be convicted, under the indictment for that offence, of any of the minor offences which are necessarily included in the perpetration of that higher one. Mr. Bishop, in his admirable Treatise on Criminal Law, (vol. 1, § 538,) enumerates the rule thus: “In that class of cases in which a series of offences are included, one within another, a party indicted for any one of them may be convicted of any lower one, unless, what does not often happen, the form of the allegation is such as does not properly charge the lower.”
Now, it is very evident that in the crime of rape an assault is necessarily included, and, under the rule above indicated, it would seem that one indicted for the higher crime of rape might be convicted of a simple assault. But it is said that there is an exception to the rule, which limits the extent of its operation, as that there can be no conviction for a misdemeanor on an indictment for a felony, and such would seem to be the current opinion. The reason usually assigned for this limitation to the rule is, that, anciently, one charged with a misdemeanor had certain ad-vantages at the trial, such as to make a full defence by counsel and to have a copy of the indictment and a special jury, which were privileges not allowed to those arraigned for felony, and it was deemed to be unjust to suffer a too heavy allegation to take from a defendant any of those privileges. As these distinctions are measurably abrogated in our country, the courts of some of the States, acting in obedience to the maxim Cessat ratione legis, cessat ipsa lex [The reason of the law ceasing, the law itself also ceases],” have discarded the exception to the rule, and, as a consequence, have permitted convictions for misdemeanors on indictment for felony.–1 Bishop on Criminal Law, § 544, and case cited. This rule seems to have been disregarded in some of the earlier English cases, and the distinction not to have been settled, as in the case of Rex vs. Joyner, 1 J. Kelly, 29; but in the more recent case of Regina vs. Saunders, 8 Car. & P. 265, reported in 34 E. C. L. Reports, 726, Gurney B., said: “I am bound to tell you that the evidence in this case does not establish the charge contained in this indictment, as the crime was not committed against the will of the prosecutrix, as she consented, believing it to be her husband; but if you think that that was the case, and that it was a fraud upon her, and that there was not consent as to this person, you must find the prisoner guilty of an assault. Before the passing of a very recent statute, I should have had to direct you to find a general verdict of acquittal, but by that statute it is enacted, that in any case of felony where the crime charged shall include an assault against a person, it shall be lawful for the jury to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant such finding.” The statute here referred to is that of 1 Vic., c. 85 § 11.
But, whatever might have been our conclusion on the point if the party indicted had been a white person, we are very clearly of the opinion that the particular instructions referred to in the assignment would have been highly improper, as the Circuit Court has no jurisdiction of assaults committed by a negro. The jurisdiction of assaults committed by negroes is given to Justices of the Peace by statute, and the Circuit Court would have no right to render judgment on any such verdict found by a jury. The section of a statute referred to is in these words, viz: “If any negro, mulatto, bond or free, shall at any time use abusive and provoking language to, or lift his hand in opposition to, any person not being a negro or mulatto, he, she or they so offending shall, for every such offence, proved by the oath of the party before a Justice of the Peace of the county or corporation where such offence shall be committed, receive not exceeding thirty-nine lashes on his or her bare back, except in those cases where it shall appear to such justice that such negro or mulatto was wantonly assailed and lifted his hand in his or her own defence.” Thomp. Dig., 540, § 9.
Mr. Bishop fully supports us in this view of the matter. In his Treatise on Criminal Law (vol. 1, § 548) he says: “Want of jurisdiction in the tribunal may present an obstacle to a conviction, for the less offence on an indictment for the greater. Thus in Tennessee the Circuit Court can take cognizance for murder, but not of manslaughter committed by a slave, the latter offence being, in such a case, triable only in another court, and the consequence is that when a slave is charged in the Circuit Court with murder the verdict cannot be for manslaughter,” citing Nelson vs. The State, 10 Hum. 518, and also The People vs. Abbot, 19 Wend. 192.
For these reasons we are of opinion that the Judge below very properly omitted to instruct the jury that they were at liberty to find the prisoner guilty of a simple assault, and therefore the second error assigned is also overruled.
This brings us to consider, lastly, the evidence in the case and the instruction of the Court based thereon. In the argument before us some exceptions where taken by the counsel for the prisoner to the remarks of the Judge below, introductory to the delivery of his charge upon the law. We have carefully examined these introductory instructions and can perceive nothing in them that affords the prisoner any reason to complain. They were happily conceived and expressed, and were well calculated to impress the minds of the jury with the solemnity of the occasion and the vital importance of the issue submitted for their determination. We think, furthermore, that the circumstances of the case imperiously demanded the caution contained in these instructions. Here was an allegation that one of the highest crimes known to the law and one of the most revolting to the feelings and sentiments of society had been committed, and the evidence pointed directly to one as the perpetrator who was of a degraded caste, and who occupied a social position greatly inferior to the position occupied by those who were to pass upon his life or death.
In order to a full comprehension of the exceptions taken to the instructions upon the law, a brief condensation of the evidence given at the trial will here be necessary. Susan Leonard, the prosecutrix, testified as follows: “Cato came to my house on Friday morning, about one hour and a half before day; I was confined, so I could not help myself; I looked up and he had one hand on each of my arms; I told him to go, and he ordered me to hush; I said, who is this? and he said it is one of Dr. Ely’s black men; by this time I waked up, so that I knew him; the moon was shining very bright; I told him to go away; he said, ‘hush, hush, I tell you, or I will kill you;’ then he bore down on my shoulder, and reached with his hand and got his knife, and put his hand on my forehead and bore my head back on the pillow and drew the knife across my throat, and I was compelled to give up; was afraid if I spoke or made any noise he would kill me; he then went through with what he came to do; he had a connection with me then.” . . . . “I am certain that the prisoner was the man.” . . . “There was no one in the house to assist me; lady in adjoining room; this is the reason witness did not halloo out.” . . . . “Mrs. Alsobrook lived in next room; only a partition between.” . . . . “Saw Cato’s eye by moonshine; room a small bed-room; room next to road was mine; window five or six feet from the bed; never saw Cato at that house before.”
Sarah A. Alsobrook testified as follows:
“Knows a negro named Cato; identified the prisoner; knows Susan Leonard; I know that someone went there, but cannot say who; he was in the house and on the bed; looked like a negro; saw through the crack; heard Mrs. L. say, Lord-a-mercy, is this you Cato; he heard me coming and jumped off the window; about one and a half hours before day on Friday night before day; this year; last summer past; before court; a light moon-shiny night;” “lived in a house over the bridge; Mrs. Leonard said she was almost willing to swear it was Cato; I have seen Mrs. L. and Cato speak when he was about the house;” “I believe to my certain knowledge that it was a negro; his head looked mighty kinky; he said he was one of Mr. Ely’s negroes; he said it was Bill, who lived at the hotel; he said something about coffee or flour; she told him there was a white man there and she would call him; he told her to hush or he would kill her; heard no scuffling; was close to the parties; she did not cry out; if she had I could have heard her.”
In addition to this testimony, there was abundant proof that both these witnesses were common prostitutes of the lowest grade. Upon this evidence and after the introductory remarks above referred to, his Honor, the Judge below proceeded to charge the jury as follows:
“Rape is where a man has carnal knowledge of a woman by force and against her will. It will be seen by this, that, although a man may have unlawful carnal knowledge of a woman, if it be with the consent of the woman, it will not constitute the crime of rape. If, however, a woman yields through fear of death or some great bodily harm or duress, it will be rape.”
“And even if the woman at first consented, if the offence were afterwards committed against her will, it would be rape; and if the offence were committed against her will, although she consented after the fact it would be rape.
“And if a man have carnal knowledge of a woman against her will, although she be a common strumpet or a common prostitute, it will be rape just as much as if the offence had been committed upon the purest and most virtuous woman in the world.
Now, gentlemen of the jury, if you are satisfied from the evidence that the prisoner did have carnal knowledge of Su-san Leonard against her will, and that he had sexual intercourse with her and accomplished his purpose against her will, then you must find him guilty. If you are satisfied from the evidence that Susan Leonard yielded to the sexual inter-course and to the carnal knowledge through fear of death from the threats of the prisoner, then you must find him guilty. If you are satisfied from the evidence that the prisoner had carnal knowledge of her against her will, by over-powering force, then you must find him guilty. Even if you are satisfied that Susan Leonard was a common prostitute, still if you believe from the evidence that the prisoner did have carnal knowledge of her against her will, then you must find him guilty.
“In prosecutions of this character, it is allowed the prisoner to prove that the prosecutrix is a common strumpet or a common prostitute. This is a fact which is permitted to go to the jury for what it is worth, to indicate the improbability of a woman of such character withholding her consent to carnal knowledge of a man. To this extent it goes to her credibility, but it is for the jury, after all, to look to the testimony to see whether the statements of the prosecutrix are true, either in whole or in part. If, upon a fair and impartial survey of all the evidence, you are satisfied that she has stated the truth, you are at liberty to believe her. You are to weigh the testimony carefully, and the law constitutes you the exclusive judges of the facts of the case, and it is your province and your duty to determine, not only as to the effect which should be given to the whole evidence, but also as to the credit to which any and all of the witnesses are entitled. If, after this careful consideration of the testimony and the witnesses who have testified, you should come to the conclusion that the prisoner did have carnal knowledge of Susan Leonard, and against her will, then you must find him guilty. You must, in order to a conviction, be satisfied from the evidence that the carnal knowledge was had by a man of the woman Susan Leonard against her will; and you must also be satisfied from the evidence that the prisoner was the man who committed the crime.
“If the evidence in this case fall short of fixing upon your minds the moral conviction, beyond a reasonable doubt, of the existence of the two facts, that the crime was committed, and that Cato was the man who committed it, then you must acquit him. But, if these two facts are clearly made out to your satisfaction by the evidence in the case, then it would be your duty to find him guilty.
“You cannot be too deeply or too profoundly impressed with the deep solemnity of the duty which you have to per-form. In the discharge of this duty you will be calm, dispassionate, impartial and just. You will so discharge this duty as shall afford protection to innocence and visit guilt with punishment. You will give the prisoner the same fair and impartial trial that you would award to a freeman.
“I now commit the case to you, with the confident belief that you will discharge your duty fully, fairly, impartially and with firmness and fearlessness. You are to take the case into the jury room, where all the world is to be shut out, and in your retirement you are to ignore all extraneous circumstances, facts and influences, and you are to determine from the evidence itself, and from nothing else, whether the prisoner is guilty or innocent, after which you will return into court and make the fact known by your sworn and solemn verdict. If, after a full view of the testimony and a fair and patient consideration of the same, you have upon your minds a reasonable doubt of the guilt of the prisoner, such a doubt must enure to his acquittal.
“I now dismiss you to your room, with the sincere hope that you may be guided to a correct and just conclusion as to the question of the prisoner’s guilt or innocence.”
It is insisted by the counsel for the prisoner, that in the body of the instructions the question of force is totally ignored, and that the issue presented to the jury was made to rest exclusively on that of consent.
In examining these instructions, we find that the idea of force and violence, as constituting an ingredient of the crime, occurs only in the definition given of the offence. In but one of the many special instructions which were given to the jury is this idea incorporated, and the learned Judge seems to have confounded the two ideas of force and want of consent, and to have considered them as identical and as one and the same. From the very terms used to define the offence, it is quite manifest that there must be a concurrence of the two ingredients in order to give to the crime its full proportion.
It is sometimes said that a want of consent always implies force or violence. This may be true, considered in strictly legal sense and when presented to a trained legal mind, but, in common parlance, (and juries can be addressed properly only in that language,) there is a very manifest difference. A woman may revolt at the very idea of yielding herself to the embraces of a man. Her moral sense may be shocked at the bare thought, and she be totally unwilling to commit the act, but impelled by the stress of circumstances growing out of her own necessities, she may be induced to take the fatal step in the total absence of any force or violence. This view of the matter is peculiarly applicable to the circumstances of this case. There is evidence of solicitations on the part of the alleged perpetrator, and of a parley between him and the prosecutrix. Mrs. Alsobrook testified that “he said he was one of Mr. Ely’s negroes; he said it was Bill, who lived at the hotel, and he said something about coffee and flour.”
It is manifest from the evidence that at this particular point of time, persuasion and not force was being used by the person to overcome her will and to accomplish his purpose. And if we connect this evidence with the testimony of the prosecutrix, it will be seen that this effort at persuasion occurred subsequent to the threat testified to by her, for the purport of her evidence is that he made the threats to kill her immediately on her being aroused from sleep. Taking into consideration the degraded character of the witness, and that she was contradicted in several important particulars by the other witness on the part of the State, we think that it was a case which eminently demanded that the question of force and violence should have been kept directly before the minds of the jury, by occupying the most prominent place in the several instructions which were given to them by the court. Such not having been the case, we are constrained to hold the objection to the instructions good and to sustain the first error assigned.
Upon the question of identity of the prisoner as the real perpetrator of the alleged offence, the court are not satisfied that the evidence was sufficient to warrant the conviction of the prisoner. That matter rested on the sole testimony of the prosecutrix, and is entirely uncorroborated by any concurring circumstances. It is true that the prosecutrix swears positively to the identity of the prisoner, as being the perpetrator of the alleged crime, but in this, if not contradicted, her testimony is greatly shaken by what she is alleged to have said to the other witness, Mrs. Alsobrook. She testified that “Mrs. Leonard said she was almost willing to swear it was Cato.” Now, it is very evident that at the date of her communication to Mrs. Alsobrook, she was in doubt as to the identity of the guilty person. By what means that doubt was afterwards removed, so as to enable her to swear positively to the fact on the trial, does not appear.
Lord Hale, in referring to the character of this offence has well said, “It is true that rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered that it is an accusation easily to be made and hard to be proved and harder to be defended by the party accused, though never so innocent.” He then mentions two remarkable cases of malicious prosecution for this crime that had come within his own knowledge, and concludes: “I mention these instances that we may be the more cautious upon trials of offences of this nature, wherein the court and jury may with so much, ease be imposed upon, without great care and vigilance, the heinousness of the offence many times transporting the Judge and jury with so much indignation that they are over-hastily carried to the conviction of the person accused thereof by the confident testimony sometimes of malicious and false witnesses.” Vide 1 Russ. on Crimes, 690-1.
Upon a full consideration of the whole case and after the most anxious deliberation, we are of the opinion that the prisoner is justly entitled to a new trial.
It is therefore Ordered that the sentence of death passed upon the prisoner Cato, by the Circuit Court of Jackson county, on the 22d day of October, A. D. 1859, whereby he was adjudged to be executed on Friday, the 16th day of December then next ensuing, be vacated and annulled, and that the verdict of the jury rendered in the said case also vacated, annulled and set aside, and that the cause be remanded to the said court, with directions to award to the prisoner a new trial therein.