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is speaking of indictments under statutes: "A case is established that is necessary to to establish that the wound was given by an instrument calculated to produce the injury complained of, but they did not go to the length of saying that the instrument must be stated in the indictment. The indictment in this case has followed the words of the statute, and I am of the opinion that it is sufficient." Under a Tennessee statute, providing that no person shall maliciously shoot or stab another, it has been held sufficient for the indictment to charge that the accused did unlawfully and maliciously shoot, &c. It is unnecessary to describe the weapon, the hand in which it was held, the wound that was inflicted, or the circumstances attending the act. That is, when the statute does not require it, you shall not be required to go outside of the statute and conform to common-law rules. And this author concludes the examination of a great number of cases upon this matter of the drawing of indictments under statutes with this remark: “Any one who reads our American decisions in detail, and observes the diverse adjudications made upon the sufficiency of indictments drawn upon new unexpounded statutes, will observe two things—that some judges are more ready than others to accept indictments which merely follow the words of the statute, and secondly, that the tendency in modern times is to require the expansion beyond the words in fewer cir. cumstances than formerly would have been demanded.”
Now, if the court please, would it be claimed that, as in the present instance, after charg. ing a conspiracy not only in the substantial, but in the substantial and exact words of the statute, we are still to go on and designate by name the parties to be injured, describe particularly the means to be employed, set forth particularly the time that was intended it should take effect, and also that we should set forth all the legal qualifications of the parties to vote, whom this conspiracy was intended to remedy or guard ? The general answer is that we are drawing an indictment under a statute, and that it is sufficient for us if we make the substantial averments which in the statute are made to state the offense. And in the present instance I cannot be mistaken when I say that all that the statute requires of us is that we shall charge a conspiracy with intent to violate the provisions of this act, and that we have beyond controversy done it, and whatever has followed by way of pointing out a class of individuals to be injured, male citizens of African descent, twenty-one years of age, qualified to vote, has only had this effect, to put upon ourselves the additional burden, when we go before the jury, of proving what we have alleged, but in every other aspect of the case it was unnecessary, and is now properly described as surplusage. The offense which we charge is conspiracy, complete without any overt act, complete, rounded, whole, and full the moment the combination was formed with the purpose described, that we have charged as fully as the nature of the offense required of us, and, more than that, as fully as the statute under which we drew it requires it.
I believe, if your honors please, that I have noticed at least all the substantial exceptions which were taken to the first count of this indictment.
And I come now to the second count. The second count charges that these defendants unlawfully did conspire together to injure, oppress, threaten, and intimidate Amzi Rainey, a citizen of the United States, with intent to prevent and hinder his free exercise and enjoy. ments of a right and privilege granted and secured to him by the Constitution and laws of the United States, to wit, the right of suffrage. • The first objection which I recall, as made by the distinguished counsel for the defendants, is, that it is not alleged that Rainey was qualified to vote; and that he is simply described as a citizen of the United States.
That is the first objection, that Rainey should have been described, clothed with all his legal qualifications as a voter is this count of the indictment. Now, we say, in the first place, that this is substantially set forth in this count. When it is stated that he possesses a right and privilege which was secured to himn by the Constitution and laws of the United States, to wit, the right of suffrage, we say that this is substantial allegation that he was a qualified voter, because he was in the possession and enjoyment of the right of suffrage, secured and guaranteed to him by the Constitution and laws of the United States, and that any more particular allegation that he was a qualified voter, to wit, a citizen of the legal age, resident for one year in this State, and in York County for six days, are not necessary, but they are all substantially included, when he is described as a citizen of the United States. He possesses the right of suffrage, secured and guaranteed to him by the laws and Constitution of the United States.
But further than that, we say, as we have said before, that this is a purely statutory offense, and that we have charged the offeuse in the language of the statute. The language of the statute is, that if two or more persons shall conspire together to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege guaranteed to him by the Constitution or the laws of the United States—and the indictment has followed the language of the statute, and has charged Allen Crosby and others for conspiring together, (following the exact words of the statute,) with intent to oppress, threaten, or intimidated. What says the statute ? “Any citizen.” What says the indictment ? Amzi Rainey, a citizen of the United States, with intent to hinder following the language of the statute-with intent to hinder and prevent the free exercise and enjoyment of a right and privilege granted and secured to him by the Constitution and laws of the United States. The indictment follows the language of the statute, and the statute makes it an offense to conspire to deprive, to conspire to injure, threaten, and oppress any citizen, and in place of any citizen as named in this act, we placed an individual, Amzi Rainey, a citizen of the United States, with intent to prevent and injure his free exercise of a right and privilege granted and secured to him by the Constitution and laws of the United States. Here we say, again, that we have followed the principles of law which govern the framing of indictments under statute ; that we have described that offense in the language of the statute, and have applied it to an individual who answers every description and every requirement of the statute, namely, a citizen of the United States, to whom a right is secured or guaranteed by the Constitution and laws of the United States.
And further than that, the language of these authorities which we have presented, it was unnecessary for us to go.
Another objection which was urged against the second count of this indictment, I believe, is the same that was urged against the first count, viz:
That no day of election was named where it was intended that this conspiracy should take effect. Of course all that we have said in answer to that objection with reference to the first count is equally applicable to this second count, and I shall not repeat it.
Another objection, also, which I have noticed, as taken to the second count, is, again, that the unlawful means are not set forth. The day and the means are not set forth. In this second count, one great answer, if your honors please, to all this, is that it is suggested by the nature of the offense which we are charging; that it is an offense of the nature which does not depend, if your honors please, upon the means employed, or upon the day when it is intended they sball take effect, nor the individuals against whom it is an offense; that is complete short of that. It is an offense which consists wholly and entirely of a combination or agreement, by concerted action, to do an unlawful thing.
How, I ask, can it be necessary, in order to charge substantially and fully, in order to put these defendants fairly in possession of everything that constitutes an essential ingredient of the charge which is brought against them, we shall specify the means, or name the day upon which this conspiracy was to be consummated?
When such a conspiracy as this shall be in motion-and I wish, if your honors please, that I could draw from my imagination ; I wish I could divest myself of the knowledge that when I state this case, I am not stating an actual occurrence in South Carolina, in this year
Let us suppose that a combination of two hundred or more persons appear at the door of a colored citizen, in some county in this State. That they break violently into his house. That they smite down his wife, and next ravish his daughter, and then fell him to the floor. Then they drag him forth upon the public highway, and when the controversy rages high whether he shall be bung or simply whipped, that if he will hold up his right hand and swear before God that he will never again exercise his own free choice in the matter of suffrage his life shall be spared.
Suppose that all those facts may appear, and suppose that the name of this colored citizen is Amzi Rainey. These conspirators are at last brought before the court, charged with the conspiracy, which I have now supposed, and it is said that it is essential to this offense, with which they are charged, that we shall name some particular day when that general oath which they forced him to take was to prevent him from voting.
Our distinguished friend says he urges nothing captiously, takes advantage of no techni. calities and no formalities, but he is here, sinply-substantially-to defend his clients from this substantial charge--conspiracy. And yet when that man whose name I bave supposed to be Amzi Rainey is utterly deprived, by threats and violence, of the right of suffrage, they say that we must go further; and although we have made him take an oath that he will never exercise his choice in the casting of his ballot, we must, forsooth, go further and name a particular day upon which Amzi Rainey should be prevented-be prevented from exercising his free choice in casting his ballot.
Let us, if the court please, if it be necessary, let us redeem the law from such aspersions upon its purpose and its requirements as to validity as that would fix to it. It is not law, it is not reason. This offense was complete when they compelled Amzi Rainey to take an oath that he would never again vote as he chose. When they had interfered with the free exercise of this right of suffrage, and no matter whether in point of fact the election day ever arrived, or Amzi Rainey did not exercise the right of suffrage, they had completed their conspiracy. They had evoked upon themselves the punishment which the laws affix to the crime of conspiracy
So that our answer to that objection is two-fold : first that the crime is complete and its description is complete in this second count of the indictment; and second, that we have done all that the statute requires of us, and that this is a statutory offense, purely so, and that every authority requires us simply to set forth the substantial crime in the substantial language of the statute without further expression.
I conie now, if your honors please, to the third count, and in the first place the same exceptions as were urged to the second count, or at least the first three exceptions ; namely, that the qualifications are not stated, and that the day of election is not stated, and the unlawful means are not stated. Those three points are urged as applicable to this third count, which is a count charging these defendants as unlawfully conspiring together, with intent
to threaten, injure, and intimidate Amzi Rainey, a citizen of the United States, with intent to prevent his free exercise and enjoyment of a right and privilege granted and secured to him by the Constitution and laws of the United States, to wit, the right of suffrage ; and further charges that said defendants in the act of committing the offense aforesaid, that is, the said conspiracy, did commit a felony, (stating it substantially,) which is known as burlary by the laws of South Carolina. Mr. Stanbery, interrupting:
Before Mr. Chamberlain leaves the point, as to the means, I wish to call his attention to the ground upon which we ruled. Now I will endeavor to make myself understood.
If the court please, the conspiracy here is against the right of suffrage; there is no other right whatever in this count; none whatever. There are two counts against other immunities, as the right of search, &c., but all the other counts in this indictment are either for conspiracies, depriving the free exercise of the right of voting at an election. Mark that. My point is, that you must state the means by which that prevention took place, and that the statute requires it. I agree that in certain cases of conspiracies the means of carrying out the conspiracy need not be stated, but this statute requires you to state what means, wben you come to the question of prevention of voting. In the first place, they have attempted to do this in another count. They have attempted to give the means, but these are insufficient. They say threats, without telling us what they are. They say intimidation, without telling us what sort. They say it is all surplusage. I will say, gentlemen, that it is all material.
Now to the first section that all citizens of the United States who are or shall be otherwise qualified by law," that is, not qualified under the fifteenth amendment, for that qualifies nobody qualified by law. Now, what is the fourth section ? " That if any person, by force, bribery, threats, intimidation, or other unlawful means, shall hinder, delay, prevent, or obstruct, or shall combine and confederate with others," which is the case here, “ to hinder, delay, prevent, or obstruct any citizen from doing any act required to be done to qualify him to vote or from voting at any election, as aforesaid, such person shall for every offense forfeit and pay the sum of $500 to the person aggrieved thereby, to be recovered by an action in the case, with full costs, and sucb allowance for counsel fees as the court shall deem just, and shall also for every such offense be guilty of a misdemeanor, and on conviction thereof be fined not less than $500, or be imprisoned not less than one month, and not more than one year, or both, at the discretion of the court.” It is this section, if the court please, which is directed to the protection of the suffrage.
Mr. CORBIN, There is no indictment upon that section.
Mr. STANBERY, Precisely, for I read every word, and you will see that they exactly fit, and if you have not got it under this section, you have not got it under the law. This prevents the exercise of voting. Now, how does this punish such an offense ? Not done by an individual, but by a combination. How is it punished ? It is an inferior misdemeanor; the fine cannot exceed $500, and the imprisonment cannot exceed one year. That is for a conspiracy against the suffrage, not against the general immunities given under the Constitution of the United States, but against a right of suffrage of a person " qualified otherwise to vote," says the first section. That is the case punished in that way. Now, what section does the gentleman read from? He reads from the sixth section, Mark that. This section requires the means to be set out, and it punishes it when a thing is done in that way depriving of the exercise of the right of suffrage by voting. It is to be punished in this way as a misdemeanor. It is not called a felony.
What is the next section? It is against an individual who shall prevent, hinder, control, or intimidate, or shall attempt to prevent, hinder, control, or intimidate any person from exercising, or in exercising thə right of suffrage, to whom the right of suffrage is secured or guaranteed, by the fifteenth amendment to the Constitution of the United States, by means of-now how? “By means of bribery, threats, or threats of depriving such persons of em. ployment or occupation, or of ejecting such persons from his house, lands, or other property, or by threats, or refusing to renew leases or contracts for labor, or by threats to himself or family, such person so offending shall be guilty of misdemeanor. Misdemeanor only. Mark that, if the court please, “and shall on conviction be fined not less than five hundred dollars, or be imprisoned not less than one month or more than one year; or both, at the discretion of the court, providing for acts of intimidation, and for acts preventing the exercise of the franchise of suffrage, providing for acts, where there is a combination as that ch and for acts done by an individual.
Section six says something more serious: “That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise or enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same, shall be held guilty of felony, and on conviction thereof shall be fined or imprisoned, or both, at the discretion of the court, the fine not to exceed $5,000, and the imprisonment not to exceed ten years."
Ten years instead of one; $5,000 instead of $300. A felony also ; " and shall moreover
be thereafter ineligible to, and disabled from holding, any office of honor, profit, or trust, created by the Constitution or the laws of the United States."
A very severe punishment. A felony here for a violation of this section, and becoming infamous, and losing altogether the right of voting.
Here they have especially provided what shall be the offense of preventing a man from voting by individual acts, or by conspiracy, and what shall be the punishment. And that it shall be done by threats of violence.
They have provided for all that, and made it only a misdemeanor. How can you construe that statute, and say that felony is intended to be embraced in the sixth section? You must construe a whole statute together.
The gentlemen, when they goup on the sixth section, have not get upon the suffrage section. That is specially provided for. The word " suffrage” and “vote' is not mentioned in this sixth section, not a word of it; it is for some other immunity. But what is the right of suffrage that is specially provided for in the fifth and sixth sections, and the conspiracy also provided for? The actual exercise of the right of voting, the means and the qualifications, I contend must be stated.
Mr. CHAMBERLAIN resumed: I don't think, if your honor please, that it is necessary that I should go back to argue those questions. Our answer is very simple and very brief, that whatever we night have done under the third fourth, or fifth sections of this act, we have chosen to bring this indictment under the sixth section, for a violation of the first section; that the fourth and fifth sections describe a different offense, of a different grade, punishable in a different manner.
That sixth section is the only section which is aimed against a conspiracy of two or more persons with intent to violate the provisions of the act; or a conspiracy to injure or intimidate any citizens of the United States with the intent to prevent them from the free exercise of a right secured to them by the Constitution. Now, we have nothing in the world, if your hon. or please, to do with the second, third, fourth, or fifth sections of this act; we have found a conspiracy in York County. Two or more persons have conspired together with intent to deprive Aizi Rainey of the right secured him by the first section of this act, and we have not gone to work to indict for any other offense but simply for that offense, and we have indicted according to the language of the act, and we have substantially and fully set forth the complete crime which we charge in the sixth section, as I have repeatedly said, and nothing in the argument of the distinguised counsel who has just been addressing this court makes any force against this position. For whatever else we might have done under this section, the question is, what we have done, and have we done that correctly which we have attempted to do? Now, I say to the distinguished counsel that there is no other section of this act under which we can indict two or more persons for conspiracy to deprive Amzi Rainey of his rights or to injure him, with a view to deprive him of a free exercise of his constitutional rights. He has read the fourth section, but that is aimed against a single person.
Mr. STANBERY. The fourth section ?
Mr. CHAMBERLAIN. O, yes; that person may combine or confederate, but still the offense is limited to an individual, and if the counsel had carefully read the section it would so appear to him. If any person.” It does not constitute a conspiracy when he combines with others, but is simply an offense of combining. It is limited to the first individual, and it is not until you come to the sixth section that you have anything about two hundred or more persons conspiring.
This is susceptible of proof. I do not think it is a matter of opinion. I think I am not l'ash in claiming that the distinguished counsel is simply mistaken, and that a careful reading of the section will convince him of the mistake. We have selected, I repeat to the court, we have selected the only section of this act under which we can indict two or more persons for a conspiracy to deprive Amzi Rainey of his rights, and in doing that we have exactly followed the statute.
Well, I come now to the third count, against which the same objections as to the names of parties intended to be injured, the means to be employed to injure them, and of the day of the election on which the conspiracy was to take effect, are urged, and our answer to all those objections have already been fully stated.
I come now to an objection which is certainly one of the most important which has been urged against this indictment. It is that in the third count; that after charging Allen Crosby and the other defendants with a conspiracy to injure and oppress Amzi Rainey, with intent to prevent and hinder his free exercise of his rights, we have charged that in committing the offense he has committed another offense which is set forth and which constitutes an offense of burglary under the laws of the State of South Carolina. The objection wbich is urged to this count is, that we have simply charged these defendants with the commission of what was excellently described by the counsel yesterday as a domestic crime-a crime that originally and outside of this statute, at least, would have been simply an offense against the laws of the State of South Carolina; and the objection is urged that this court has no jurisdiction to try and convict Allen Crosby and those other defendants of the crime of bur glary under the law of South Carolina.
The argument of the counsel was elaborate, and it is within the recollection of the court, while pointing out that it is within the jurisdiction of the United States, of burglary and crime was very extensive, and reached to the various territorial limits, and applied to the various classes of offenses. Yet it was all upon Federal ground or under protection of Federal functions. I think I give full force and scope to the argument of the counsel in this statement to this objection. Well, now, if the court please, I do not know but we are ready to grant the entire argument of the distinguised counsel upon these points; and to agree with him that the United States courts cannot take jurisdiction to try and convict for, and punish for the commission of a crime which is simply a crime within the territory of South Carolina. What we claim is—and I come at once to the point of our argument, and our answer--what we claim is, that this indictment is drawn on the seventh section of this act, which is now under discussion. The right is not claimed for this court to take jurisdiction of this offense, either to try or to punish for its commission. Now, in order that my meaning and argument may be apprehended, I ask the court's careful attention to the reading of the seventh section. It is assumed in the argument of the counsel throughout that this is an attempt to try Allen Crosby and others for burglary, and that if they can be tried, they can be convicted and punished for the crime of burglary against the laws South Carolina. Now, let us see what this seventh section, under which this portion of the third count is drawn, attempts. to do:
“ SECTION 7. Be it further enacted, That if in the act of violating any provision of either of the two preceding sections, any felony, crime, or misdemeanor shall be committed, the offender on conviction"-what? If your honors please, the argument of the distinguished counsel would lead us to suppose that the next words would be that “upon conviction of said felony or other crime.” No-"on conviction of such violation of said section, shall be punished with the same punishments as may attach to the said felonies, crimes, and misdemeanors, by the laws of the State under which such offense was committed.”
Now, if your honors please, recollecting the language of the section, we say this, that this section did not contemplate that this court was to try the crime of burglary; nor that this jury should convict, and this court punish for the crime of burglary, but simply this, that if it appears that in committing the conspiracy, tbe offense of burglary, or any other felony was committed then--not upon conviction of the burglary, but upon the conviction of the conspiracy, or whatever offense was charged in the two preceding sections, the measure of punishment for the conspiracy, not for the burglary, should be the same which attaches to the crime of burglary, or any other crimes, according to the laws of South Carolina. Now, if your honors please, it seems to me that this comes very far short of claiming jurisdiction for this court over the crime of burgary.
It is simply, if your honors please, a mode pointed out by this statute for arriving at the proper punishment to be affixed, not to the burglary, I repeat, but to the conspiracy. It is simply a statutory mode of determining, for this court, how much punishment shall be inflicted upon these defendants. If they are found guilty by this court for the crime of conspiracy, there is to be no conviction of burglary, there is to be no conviction for any offense ; that which is charged as against the peace and dignity of the United States. But the statute provides that if in the act against the United States they shall commit any other felony -what? that this court shall punish them for that felony? No; but upon conviction of the crime that is charged against them as against the peace and dignity of the United States, the punishment of that crime shall be regulated and determined by the punishment that is affixed to the crime of burglary under our State laws. Well, now, if your honors please, we find as a matter of fact, in the investigation of this case, as we believe, that the crime of burglary, according to the laws of South Carolina, had been committed in this instance, and therefore we stated it in form and manner according to the laws of South Carolina.
But we have not placed it here in this count in connection with this count upon the theory at all that this court, or the jury of this court, are authorized to bring in a verdict, upon this count, of burglary, against the peace and dignity of South Carolina, but that the statute, in order to enable this court to fix the proper penalty to the crime of conspiracy, has authorized us to inquire in this count whether an additional crime or felony has been committed or not, and not to convict, as I have said and repeat, nor to punish for that crime, but simply to ascertain whether that crime has been committed, and if it has been committed, then to let it be a measure of the offense which is charged as against the peace and dignity of the United States. Now, that is our theory of this law ; that is our idea of what the law intended that this count should do; that is the theory upon which this count in the indictment is drawn, and in this view of it, if your honors please, it does not claim jurisdiction of any offense committed in South Carolina, against the laws of South Carolina, but simply authorizes this court through its jury to inquire whether their crime of burglary, or any other felony or crime against the laws of this State have been committed. And, if so, to make that the measure of its punishment of the offense against the laws of the United States.
Mr. STANBERY. How does the court inquire ; how find the fact?
Mr. CHAMBERLAIN. The jury finds the fact, thus, "guilty of the third count.” That is, if the verdict is generally given-guilty of a conspiracy against Amzi Rainey, and that in