Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1868-09-23

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@Baugh" bsgging Of another bale Witness gn3sd cot
ton for his nsighbor, some Of whom used tas ba"Sn
bsgging. - -.
tors GIN discovered the wagon tracks at the gin and m
the field aud Gained identify the bale recovered BY
its shsPe, the "Baagh' haggng, and the popularity OF
John comert saw George Emanaei eassying the fore
wheels and tongue of his wagon TO bis shop early the
next morning after the cotton was taken; Emanuefs
wagon old and Stacking defendant Roach go
ing the house Of Emanuel the day before The cotton
was taken, but never knew Of any intimacy between
thcm
George Hilton who was w'.h the wagon carrying the |
bale Of coti0n Nashville when stopped by tie prose
c1tor says tie bale Of coonwa brought fro the house
Of defvsdant Roach at defendant Roachs on the
night November 20 1866 and state that two bales Of
cotton brought there shout midnight by defendant
George Emanuel and another negro he did not know,
one Of which bales the the the wagon
when Il vas stopped by theprosecutcr.
Emanuel LETT Roach's house IN short time saw hlm
at Roachs shortly after, after which Skillet threw
the cotton iao the river Roach was nos present ana
took part in throwing the cotton in the river Roach
ssternaw lived with him aud 81 bis house the
night Of 26th November 1855, when two bales Of cotton
we're brought there by defendant Geo. Emanuel, and
another negro, about midnight They left immediately
Gotten brought into the ro0m and no effort made
to hide it, Part Of bale put IN the bed tick the
other bale her sister, Mrs. Roach and Jesse Petway,
took to Nashville about month Afterwards Roach had
been selling goods and groceries at Spring H in 1856,
and told his sistein law that Geo. Emanuel owed him
for goods, and horse and had brought cotton 70 pay IT,
Skillet to Roachs after Geo Emanuel had thrown
Je5so Petway, who took the bale Of cotton to Nash
VILE found it under the bed at Roachs house in small
room which was eighteen feet square, started with the
hale Of cotton ROachs wife aud Geo. Hilton, o'clock
in the morning. but explains that the why Mrs
Roach started that time that she wanted time 70
sell the cotton and Nashville that evening by
the cars. Billy Blain Skillet at Geo. Emanuels
house when the cotton taken had Roach gOls
in the al seton Of Geo. EmaDues house several times
before the cotton taken, but does not know that be
went there.
TIE testimony for the defense shows little except that
in the summer Of 1866 of the witnesses hired Geofe
Emanuel to haul some hay rough dirt road, aRd
that his wagon broke down with load OF about 800
pounds, which introduced evidently to show that
Emaduers wagon would bear the weight oftwo bales
/ Of cotton without breaking down.
Martha McCarrOlI shows that she was cooking, milk
ing and cleaning up Geo. Emanues house before and at
the time the cotton said to have been taken, and
went home every night aud returned early next morning
He started home with witness the night the cotton
was said to have been TAKEN about or o'clock and
stopped the way for shelter from the rain 1t
that when they got witness fathers house, George
stopped outside the house and had conversation
| with the father of witness.
Her statement is eerroboraed by that Of her father
The blacksmith at Spring Hill mended the wagon for
Geo Eman rel on the day after the cotton was said TO
have beed taken The hounds and tongue broke,
| and tho wagon very muddy.
G. A. Merrill and j. g. Nicely testify that gins fer the
public Baughs baggng, and it in general in
the county. The jury returned general verdict Of gull
ty against both defendants and fixed the term of i'm
| prisonment Of defendants at five years. Defendants
moved for a trial. which was Oyerruled. They then
| moved an arrest Of judgment, which motion was also
overruled and they appealed in to this court.
II appears from the bill Of exceptions that the delen-
dants when brought to the bar of the court and ar
rsigned moved the court for severance their defen-
ses we're antagonstc, which motion overruled, to
which action Of the court the defendants excepted and
offered to make adaYts stating the ground Of severance,
and then they joined in plea of not guilty, such
plea was entered After the jury sworn defendants
fled their afdayi before referred to, showing grounds
for the asked for and moved the court that
they the afdayits be received having been fled be-
fore the jury sworn, to which the court assented
and asking the court that the severance be allowed
which was refused.
The court charged the jury (amoug other things pot
necessary meutOn) that if they satisfied that the
two bales Of cotton stolen by defendant Geo. Eman
ue or some other person persons in Williamson eoun-
y and that the cotton cerre 10 the house of the de-
PENDANT RoaeA, in Maury county and there received BY
him, knowing the same to have been stolen in William
son county and afterwards the cotton or any par
thereof by the defendant Roach any other per
acting under his authority brought into the county
of Williamson, and the in said county Of vii
hanson, seized by the prosecutor IN ansifa to Nashville
then that the defendant, Roach, would be guilty as
charged and it would not be necessary that the proof
should show that he himself present with those WHIT
hauling the cotton when seized IL the defendant
wife along with the wagon his agent, acting
der his control and directions the oensc Of receiving thu
stolen property and the fraudulent intent deprive tn
true owner thereof in Williamson county charged il
the indictment, would be fully made out.
We think there arc two grounds on which the judg
ment in toss should be reversed and the
handed:
l. The defendants, the ground shown by then
in their aidavits, and which treated as fled DO
fore tho jury sworn, should have had a scpsFat
trial If they had plead jointly it would have been al
election to be tried jointly, held in Hill the State
2 Yer, 2l6. But there no such election in thi
case for although the minutes of the Judgment show
hat they plead not guilty, yet the bill of exception
shows that upon being arTagned the defendants asked
for severance and offered to show grounds therefor
which refused and after the jury sworn did pre-
sent their respective adavts showing grounds and th
court consented to treat the adayts as having bser
filed before the jury sworn but refused permit lie
PENDANTS to soYer on the trial.
The case Of Hill vs.. the State simply decides that al
Hill pleaded jointly with his co-defendant William son
that that election to be tried jointly and the de
cision of that evidently placed upon tho grounC
that Hill had coed reason to sever in his defense
and it is laid down taat any good for separate
trial interviewed between the time Of pleading and thu
trial. ii rested the defendant TO show tEus LEAVING
the inference clearly that If the defendants did elect
By joint plea to be tried jointly they would be entitled
to be tried separately if hoy showed good for the
severance
We think it clear in this ease that the defendants
whose defenses auagonistc should not have beer
forced 60 trial jointly In many cases the ends Of
justice will DO better attained by granting separate trials
to defendants jointly indicted. The under consider
alton furnishes illustration Of the truth Of the prepo
sition. One Of the defendants was white man and IN
other negro. Their afidavits incorporated in the hill
Of exemptions show that several persons presented as in
|
lenged by the other defendant thus deprving each
them Of selection Of persons whom each desired 10 tr,
biz CASE for il has been settled ever since the case
King vs. the three Salsburys; ] Plow Com. 100 an,
the pracuee mas never besn changed that where tht
right Of peremp.ory challenge exists and two are ar
ragned and plead not guilty, they each have their m.
doubted right to their full number Of psremptory eha
leGges ard if elect juror the other may chaeng,
him, in which event he must be set aside The defe1
dasis jointly indicted for stealing the cotton ans
for receiving IL knowing il 90 have been stolen and III,
proof in the cause, aud the peculiar circumstances of N,
show thai injustice may have done the den
dants, or one OF them, by putting il in the power Of
either to select jury 60 the prejudice Of tho other
But, however this may be- there was error In m.
charge Of the court below in particular at least
The proof shows that the cotton was stolen in William
son county, aud even If the defendant Roach was gut
ty under the first count IN the Indictment ard go
though he received the cotton knowing Il to have beT
stolen, and with the fraudulent inens which must exist h
make cut the case against bim the ocnse Of reeeyiuo
the cotton was committed in Maury county the cotton
remaining az his house, in Maury county for one month
The olense tho receiving Of the stolen nronert,
knowing It to be stolen With intent etc The remoyi1e
OF the property removed to Nashville smonth after
wards did not add TO sggrayate the oese The Of
Tense committed in M6ary was complete when the COTTON
received, with knowledge that il was stolen Hence
the authority OF Hill VS.. the State in Head has as ne
think nothing 70 DO with the case for il really made No
difference whether the possession Of Mrs. Roach the wife
OF defendant the profession Of defendant or the rs
ecutor The removal Of the cotton by Mrs Roach or auy
ons else did not constitute separate oense upon which
the defendant Roach, could De found guilty under The
second count in the Indictment Can it be said that Inc
sending Of the stolen goods to Nashville by Roach
through an agent though the cotton was carried
back into and through the county Of williamson woud
make out the oense Of receiving the stolen cotton so
TO give the Circuit Court Of Williamson ilrisdstiop h
try the defendant this count2
The defendant, Roach could have been ipdietet =;
Msury county for receiving the stolen cotton even With
out joining the other defendants for receiving stolen