Opinion
(June Term, 1847.)
1. In this State the presumption is that a black person is a slave.
2. An indictment for trading with a slave in the daytime, by selling him spirituous liquor, must negative an order of the owner or manager as well as a delivery for the owner.
3. But an indictment for selling spirituous liquor to a slave in the nighttime need not contain such a negation, for the offense is complete whether the slave had a written permission from his owner or not.
4. Upon conviction on an indictment containing several counts, one of which is good and the others bad, judgment must be rendered for the State upon the good count.
APPEAL from CHOWAN Spring Term, 1847; Caldwell, J.
Indictment for trading with a slave, and has two counts. The first charges that the defendant in, etc., on, etc., "unlawfully did sell and deliver to a certain slave, whose name to the jurors is unknown, a pint of spirituous liquor, not being delivered for the use of the master, manager, or person having the control of said slave, contrary to the form, etc." The second count charges that the defendant, "afterwards, to wit, on the first day, etc., in the night, between the setting of the sun and the rising thereof, unlawfully did sell and deliver unto a certain negro slave, whose name to the jurors is unknown, and the property of some person to the jurors unknown, a pint of spirituous liquor, the said spirituous liquor not being delivered for the use of the master, overseer, or person having the management of said slave, contrary," etc.
On not guilty pleaded, the evidence was that the prisoner, in the night-time, sold and delivered spirituous liquor to a negro, but the witness did not know him, and could not say whether he was a slave or not. The counsel for the prisoner objected to the evidence being received, and insisted that it did not legally authorize a conviction. But the court received it, and charged the jury that it was evidence on which they might find the defendant guilty. After a verdict for the State, the defendant moved for a venire de novo for error in (276) receiving the evidence and in the instructions to the jury; and that being denied, he moved in arrest of judgment because the indictment does not aver that the liquor was not sold to a slave "by the order of the owner or person having the management" of the slave. The motion in arrest was overruled, and the defendant appealed.
Attorney-General for the State.
A. Moore and Heath for defendant.
Upon the question of evidence, and the presumption of the state of a negro from his color, the Court thinks the decision right. In Scott v. Williams, 12 N.C. 376, the Court said explicitly that in this State there must be a presumption that a black person is a slave. That is a presumption not restricted to actions to try the right to freedom as peculiarly applicable to them. It is a natural presumption arising out of the color, and the known fact that all persons of black complexion, or negroes, were originally slaves here; and therefore it is laid on one who says such a person is not a slave, to prove it; and this extends to every case in which the question, slave or not slave, arises.
The judgment cannot be arrested, because, although we think the objection well taken to one of the counts, we hold the other to be good. Taking all the provisions of the act together, the effect of it is that on Sunday, and also in the night-time, it is altogether unlawful to trade with a slave, even with the express permission or order in writing of the owner. It seems to have been the intention of the Legislature that Sunday should not be desecrated by that species of traffic; it being probably considered, also, that much of the mischief, in point of civil polity, from the trading of slaves would be provided against or avoided by not allowing it on that day, when they are not so much in (277) the service or under the eye of the owner. This latter motive led further to the prohibition of traffic with them in the night-time of any other day, it not being deemed safe to allow them under any pretense to trade between sunset and sunrise. The language and grammatical construction of the act, besides the mischief in view, make this the necessary construction. The first enacting clause of the section, Rev. Stat., ch. 34, sec. 75, contains a general prohibition in broad terms, from buying any one of certain enumerated articles from a slave; and then follows a like prohibition from selling and delivering to a slave any goods or articles of personal property. Then come two provisos: the first of which relates to buying any of these forbidden articles from a slave, and allows such buying "in the daytime, viz., between the rising of the sun and the setting thereof," Sundays excepted, if the slave have the permission in writing of the owner, etc., to dispose of them; and the second relates to selling to a slave, and also allows, "in the daytime as aforsaid," the sale of anything in exchange or payment for any articles which the slave had written permission to sell. Both provisos are expressly restricted to the daytime, and do not allow any trading with a slave, except in the daytime. The trading with a slave, either in buying or selling, on Sunday or at any time but the daytime, as defined in the act, is thus left to the general prohibitory enactment in the beginning of the section. As that enactment forbids all trading, without any qualification as to the owner's permission or any other whatever, and the provisos, which introduce such qualification, are expressly limited to "the daytime," it follows, when the indictment charges a trading in the night-time, it takes the case out of the operation of the provisos altogether and states a case in which the corpus delicti, as enacted by the act, is complete. There is nothing else to be added. Being in the night-time, it is no part of that offense that it was done without the permission of the owner; for the (278) permission, if given, would not prevent the act from being a crime, and therefore it need not be negatived. This conclusion is not affected by the exception in the second proviso — "always excepting spirituous liquors, firearms, powder, shot, or lead, unless these articles be for the owner or employer of such slave, or by the order of the owner or person having the management of the same." From its nature as an exception it only takes those articles out of the operation of the proviso to which it is an exception, and, therefore, the office of it here is to regulate the sale and delivery of those articles in the daytime, and it has no application to a sale of them in the night.
That exception, however, as we think, makes it necessary, in an indictment for selling or delivering spirits to a slave in the daytime, to aver that it was not for the owner or by his order. The object of the exception is obvious, standing as an exception to the second proviso. That proviso does not require that the written permission of the owner should specify the articles which may be sold to a slave; but it allows "any goods" to be sold to him in exchange or payment for any of the articles which the owner's permission (as mentioned in the preceding proviso) authorized the slave to sell in the daytime. The office of the exception was, in respect to the articles mentioned in it, to qualify that general permission to sell "any goods" by making it necessary not only that the owner's permission should specify what the negro might sell, but also that it should be specified that he might purchase or take in exchange these articles, to wit: spirits, firearms, etc. The meaning, then, is that there must be an express direction or written order of the owner or manager of these articles as the only justification for letting a slave have them in the daytime. But with such an order they may be sold to the slave or delivered for the owner in the day. The question then is, further, whether an indictment for such a sale must negative the delivery for the owner, and the written order of the owner or person having the management of the (279) slave. We think it must. It is true, there is a distinction between an exception in the enacting clause and a separate proviso, the rule being that the former must be negatived and that the latter need not, but is matter of defense. Steel v. Smith, I Barn. Ald., 95. And it may possibly be that, as to purchases from slaves in the day, an indictment need not charge more than the buying of a prohibited article, which would be prima facie unlawful, leaving to the defendant to show the authority. However that may be, and we give no opinion on it, we think an indictment for selling these particular articles in the daytime must negative the excuse, allowed by the exception for such a sale. The frame of the act is peculiar. What is said about spirituous liquors, firearms, etc., is, in itself, an important enactment also, in so far as it requires that, as to those articles, there should be a written permission, not only that the slave might sell the things for which these things were given, but also that the writing should expressly authorize the sale to the slave of the particular articles or their delivery to him for the owner. It amounts to an express prohibition against the sale of these particular articles by name, unless the slave be permitted in writing to buy them or to take them for his owner. As to them, the exception, "unless," etc., is so mixed up with description of the offense, and in the same sentence, that the one cannot be read without the other; and, therefore, according to the general rule, the description must bring the case within both the affirmative and the negative words of the enactment. Here that has not been done. The first count does not charge the sale to have been in the night, and we cannot assume that fact without an allegation of it. As an indictment for selling in the day, it is defective, because it does not negative an order of the owner or manager as well as a delivery for the owner.
But as one of the counts is good, and the judgment is such as (280) may lawfully be given on that, it cannot be declared erroneous as has long been settled.
PER CURIAM. Affirmed.
Cited: S. v. Robbins, 31 N.C. 357; S. v. Hyman, 46 N.C. 63; S. v. Evans, 50 N.C. 251; S. v. Beatty, 61 N.C. 53; S. v. Tisdale. ibid., 221; S. v. Baker, 63 N.C. 21; S. v. Stamey, 71 N.C. 203; S. v. Dalton, 101 N.C. 683; S. v. Smiley, ibid., 711; S. v. Cross, 106 N.C. 651; S. v. Toole, ibid., 740.