Opinion
(December Term, 1828.)
An owner who has notice of a capital charge against his slave, in case of a conviction, is not only bound to pay the prison fees, but also the fee allowed by Act of 1797 (Rev., ch. 484) for carrying the sentence into execution.
NEGRO CHARLES, the property of the defendant, had been convicted of rape, and executed.
Badger for the appellant.
R. H. Jones, Attorney-General, for the State.
FROM NORTHAMPTON
A question was made before his Honor, Judge NORWOOD, on the last circuit, whether the defendant, as the owner of the slave, was liable to his prison charges, and to the fee of $10 allowed for carrying the sentence of death into execution. Both questions were decided for the State, and the defendant appealed.
From the two acts of assembly recited in S. v. Isaac, decided at this term ( vide the last case), the defendant Jones, the owner of the slave, is liable for the costs of prosecution against him, because if the slave had been a free man his estate would be liable.
With respect to the fee of five pounds for executing Charles, it is included, I think, in the costs of prosecution. In the act of 1797 (Rev., ch. 484), amongst other fees to which the sheriff is entitled for apprehending and carrying criminals to jail, ten shillings is allowed for carrying any sentence or decree of the Court into execution, where (49) the convict is to be corporally punished, and $5 for the execution and decent burial of any one.
By the same act provision is made for the payment of such fees by the State, provided they cannot be got out of the estate, or body of the prisoner. But it declares that no such claim shall be allowed until a fieri facias shall have issued to the county in which the prisoner may be supposed to have owned property, and the sheriff's return thereon that nothing was to be found, nor until a capias ad satisfaciendum shall have issued, and if it was executed upon the body of the criminal, not until he discharged himself by taking the oath of insolvency. From this act it appears that the estate of the slave would be liable in case he was a free man, it follows, of course, that the owner is so.
PER CURIAM. Affirmed.