Spencer v. State

20 Ala. 24 | Ala. | 1852

GrOLDTHWAITE, L

The first question presented by the record arises upon the admissibility of the declarations of the slave, made in the presence and hearing of the prisoner. The record does not inform us of the character of the declarations, and assuming for the present that they were not denied by the prisoner, and that his situation at the time was not such as to render it improper for him to make such denial, the *27question wbicb tbe court is called upon to determine is, simply whether the admission of a white man to the truth of any statement made by a slave, in his presence and hearing, can be inferred from his silence. The rule in relation to evidence of this character, so far as we are able to deduce it from adjudged cases and the best elementary writers, is, that the statement must be heard and understood by the party affected by it; that the truth of the facts embraced in it must be within his knowledge, and that the statement must be made under such circumstances and by such persons as naturally to call for a reply. 1 M. & M., 306; 14 S. & R., 393; Child v. Grace, 2 C. & P., 193; Hayslep v. Grymer, 1 Ad. & El., 162, 165; Batturs v. Sellers, 5 Har. & J., 117, 119; Cow. & Hill’s notes to Phil. Ev. Part 1, 191 to 199; 1 Green. Ev., § 199; Com. v. Kinney, 12 Met., 235.

To reject the evidence in the case under consideration, solely on the 'ground that the party making the declaration was a slave, would be in effect to decide that, under no conceivable circumstances, could a statement made by a slave call for a response from a white man; a proposition in direct opposition to our daily observation and experience,

That the declaration was made by a person whose condition rendered him incompetent as a witness, does not in the slightest degree affect the principle on which evidence of this character rests. If the declaration was made by a slave, and the party affected by it had made by his reply a direct admission of its truth, there could be no doubt of the admissibility of the statement and reply; and in oases of implied admissions, the admission, instead of being made by language, is made by the silence of the party. The circumstances under which the declarations were made, the fact that the slave, before making them, had been taken aside and privately talked to by some of the company, cannot, in our opinion, in the slightest degree affect the question of the admissibility of the evidence, although it might properly have the effect of impairing its force with the jury. In relation to the reply in the affirmative, made by the prisoner to the question asked by some one present, if he did not intend to chastise the slave for making the declarations, we do not think it amounted to a denial of the statement made, and could therefore have no *28bearing upon, the question of the admissibility of the evidence. Neither does the fact, that the declarations were made while the party affected by them was under arrest, affect their admissibility. Evidence of the implied admissions of parties while in the custody of officers, under circumstances similar to the present case, has been received by the English courts, Rex v. Smithers, 5 C. & P., 332; and no case has been cited by counsel, and we have been able to find none, in which evidence of this character has been rejected on this ground alone, without the intervention of some other circumstances operating on the mind of the prisoner by fear, by doubts of his rights, or by inducing the belief that his security would be best promoted by silence. No circumstance sufficient to raise this presumption appeared in the case under consideration, and it follows that there was no error shown by the record in the admission of the testimony objected to.

The language of the charge, as stated in the bill of exceptions, renders it difficult to ascertain with accuracy the precise idea intended to be conveyed to the jury. The evidence, however, which is stated in connection with it, and upon which we must presume it was predicated, tended to prove that the slave had run away in the State of Georgia, and the charge in substance was, that a slave in another State, and belonging to a non-resident, could be the subject of the statutory offence declared by the eighteenth section of chapter 4 of the Penal Code, Clay’s Dig., 419. In our view, the charge would seem to give to that section an extra-territorial operation, and in that aspect it was clearly erroneous.

And if the court intended to instruct the jury that the prisoner, by bringing into this State a slave taken by him in another State under any of the circumstances which would have been a violation of the section of the Penal Code before referred to had the taking been in this State, could be convicted on the indictment against him, we think the charge was also erroneous. The twenty-fifth section of the Penal Code, chapter 4, Clay’s Dig., 420, provides “ that every person, who shall fraudulently or feloniously steal the property of another in any other State or country, and shall bring the same within this State, may be convicted and punished in every such case as if such larceny had been committed in this State; and *29in every sncb case, snob larceny may be charged to have been committed in any county in or through which such stolen property may have been brought,” and the previous decisions of this court, based upon the two sections, the eighteenth and twenty-fifth, taken in connection with each other, have established the rule that for a violation of the last section, in relation to a slave stolen in another State and brought into this, that the indictment must be framed on the eighteenth section. William v. The State, 15 Ala., 259; Ham v. The State, 17 Ala., 188; Murray v. The State, 18 Ala. Rep., 727.

It is unnecessary to review the correctness of these decisions upon this point, as we all agree, that whatever may be the form of the indictment required to reach offences under the twenty-fifth section, it can make no difference in the facts necessary to be proved to establish the guilt of the accused under that section. Applying the legal rules of construction to the section last referred to, we entertain no doubt that the words “steal” and “larceny” are there technically used, and that one of the essential ingredients of the offence intended to be created by that section, was the taking of the property in another State, under such circumstances as would constitute larceny in this. Murray v. The State, 18 Ala., 727.

The eighteenth section, however, while it embraces the stealing of slaves within the meaning in which the words “steal” and “larceny ” are used in the twenty-fifth section, also embraces other offences, of the same character it is true, and visited upon conviction with the same punishment, but which differ from that offence, considering it as a technical stealing, in some essential particulars. Thus, to carry or entice away a slave in this State, with the view to enable such slave to reach a State or country where he might enjoy his freedom, would be a violation of the eighteenth section; but if the same act with the same intent was committed in another State, and the slave brought into this, it co.uld not, under the view we have taken, be held as a violation of the twenty-fifth section. As the instructions, in the view in which we have last considered them, may have induced the jury to believe that the term stealing, as used in the twenty-fifth section of the Penal Code, covered all the acts embraced by the eighteenth section, and thus tended to mislead them, it follows that the judgment must be *30reversed, and the cause remanded; and tbe clerk of tbis court will issue a mandate to tbe sheriff of Macon county, reciting tbe judgment of tbis court, and directing bim to demand tbe prisoner of tbe warden of tbe penitentiary, and requiring tbe warden to deliver tbe prisoner to sucb sheriff, upon being furnished with a copy of said mandate and a receipt endorsed thereon acknowledging sucb delivery, and commanding sucb sheriff to transfer the prisoner to tbe jail of bis county for safe keeping, until discharged by law.