Martinsburg gazette and public advertiser. [volume] (Martinsburg, Va. [W. Va.]) 1826-1833, 1833-07-25
rrom tl,e Richmond Compiler.
3 he Editor Of he Compiler:

\ fore the late General court, IToIn ui-
ferent and distant parts of the Com
monwealth, depending onthe construc-
ton of a single section of the law pass
ed in the month of March, 1892, con-
corning free negroes and mulattoes.
There has been considerable conflict
of opinion on the subject; but as the
question has been decided by a large
majority Of the court, il may now be
considered as settled. AS the same
question may arise in every court of
criminal jurisdiction in the State, it is
important that the opinion and decision
Of the court should be published.
GENERAL COURT, JULY 4th, 1888
FIRST CASE.
The Commonwealth against Netcton JTeldon.
The case was argued by Mr.. Samu.
els, of Shenandoah, in the form Of writ.
ten notes, in behalf of the prisoner, and
by the Attorney General for the Com
monwealth; after which BrOckenbrough,
Judge, delivered the opinion of the court
as follows:
This is an adjourned case from the
Circuit Superior Court Of Shenandoah
county. Weldon, the prisoner, is free
negro, who was indicted in that court,
in April last, for the crime Of horse.
stealing. He was tried by jury anG
found guilty. He moved the court to
arrest the judgment, for the following
reasons: first, because it appears by the
Indictment that the said Weldon is a
free negro, and that this court has no
jurisdiction to try the prisoner for the
offence charged upon him; secondly,
because, by virtue of the act passed
March 18th, 1892, free negroes and
muattocs shall thereafter be prescott
ed, tried, convicted and punished, for
any felony, by justices Oyer and Ter
miner, in the same manner that slaves
are tried, convicted and punished; and,
thirdly, because, from the Indictment,
no Judgment ought to be rendered a.
galnst the prisoner. The Circuit Court
adjourned TO this court, for its advice
and decision, the question-what judg-
nent should be rendered in this casel
We have rarely met with any law
which has given rise to greater di-
, versity of opinion than the short section
on which this case, and with 1t, the life
, Of the prisoner, depends. The counsel
who lave arguedlt, have each given a
very lucid view of his own construction,
and the court, on the most serious con-
sldcratlon, lave come to conclusion
different from that of both OF them.
The question depends on the eleventh
section Of the act passed n the session
OF 1881, CHI. %, which is inthese words:
-"Free negroes and mulattoes shall
hereafter be prosecuted, tried, convict
ed and punished, for any felony, by
justices of Oyer and Termner, in the
same manner as slaves are now prose-
cuted tried, convicted and punished:
and any court summoned or adjourned
for such trial, shall have and exercise
all the powers and incidents of a court
summoned or adjourned for the trial Of
slave, except that in cases Of homi-
eide, and in cases where the punish
mcnt shall be death, the mode of trial
snail remain as heretofore"
WHAT'S the meaning Of the first clause
of this section? They "shall be punish
ed in the same manner as slaves. -
Does it mean that the free negro shall
be punished to the same ertent-to the
same degree-that the slave is punish.
edl Heretofore, by former laws, plain.
ly written, the slave guilty of horse
! stealing was punished with death, with
out benefit of clergy; the free negro by
S Imprisonment in the public jail and pen
, itentiary house. The same difference
exists as to burglary, robbery, forgery
and hong list of crimes. We do not
think that 1t is consistent with the set
tied rules of Interpretation applicable
) to penal statutes, and particularly to
statutes on the subject Of capital lclo.
MES, to construe this act as abolishing
} former laws, and substituting death as
the punishment for Imprisonment, by
| the mere declaration that the manner OIL
5 punishment of the free negro shall be
the same as the manner of punishment
of the slave. Penal statutes must be
construed strictly, and we should in all
such cases bear in mind the precedent
set in the construction Of statute OF
! George the Second by the courts in
England. By that law, the stealing Of
sheep, or other cattle, was made felony,
without benefit of clergy. But the &c.
neral words cor other CATTLE" being
looked upon as much too loose to create
a capital offence, the act was held to
, extend to nothing but the stealing Of
sheep. And in this case, we are of OPT
} MON that to understand the word man.
ner as meaning ertent or degree, would
l.. - u -. IL