Opinion
(June Term, 1851.)
It is not a sufficient justification for a person who does an unlawful act to show that he did not believe it unlawful. When the act is unlawful and voluntary the quo animo is inferred necessarily from the act itself.
APPEAL from Bailey, J., at RANDOLPH Spring Term, 1851.
Indictment for selling spirituous liquor to a slave, contrary to the statute. On not guilty pleaded, the defendant was convicted and fined a small sum, and he appealed. There was evidence on the trial that the defendant kept a shop in Randolph County, on the side of a public road leading from the upper country to Fayetteville, and that in the evening of a day in December, 1849, John Tapscott and another person came with their wagons near to the shop and stopped for the night in the road, and that Tapscott had with him his slave Nelson, who drove his wagon. About 8 or 9 o'clock at night the defendant went from his dwelling-house to the shop with three of his neighbors to do some business for them, and while they were in the shop Nelson went in and asked the defendant whether he had spirits for sale, and upon being answered in the affirmative he asked for a quart, and the defendant drew it and delivered it to him and received the price in the presence of three white men. On the part of the defendant, Tapscott was then examined, and he stated that Nelson was a confidential and trusty servant and for some years had driven his wagon and gone trips to different and distant markets by himself, and that he was usually furnished with money and authorized to provide necessaries, such as provisions for himself and horses, shoeing the horses, repairing the wagon, and the like; that during the day on which they got to the defendant's there was a (104) cold rain, and Nelson had asked him for a dram, and he told him that when they met with any spirits he should have some; that he did not know that Nelson had gone for the spirits, but that the next morning Nelson told him he had purchased it and brought him the jug containing it, which belonged to Nelson, and that he and his companion drank some of the spirits, also Nelson and another slave who was with the other wagon, and that in the course of the day one of his horses was taken sick and he used the residue of the spirits in drenching him, and then or afterwards refunded to the negro what he had paid for the spirits. This witness, being further examined, stated also that he had never given Nelson any authority to buy spirits for him, nor expressed a wish that he should, and that he did not know that the defendant kept spirits for sale or that Nelson had gone into the shop until informed thereof the next morning, as before stated.
The counsel for the defendant moved the court to instruct the jury that a slave might be his master's agent to purchase spirits, and that there was evidence upon which the jury might find that Tapscott had constituted Nelson his agent to buy the liquor from the defendant, and that he bought it for his master. But the court refused to give the instruction as prayed and informed the jury that although a master may make his slave his agent to purchase spirits for him, yet there was no evidence that Nelson was the agent of his master to make the purchase from the defendant, or that it was made for the master.
The counsel for the defendant then insisted to the jury that the defendant had reason to believe, and did believe, that Nelson was buying the liquor for his master; and he furthermore moved the court to instruct the jury that if they found the defendant believed the slave had been sent by his master to purchase the spirits for him he ought not to be convicted, although it turned out that he was mistaken (105) in that belief and the slave had no authority from his master to buy for him. But the court advised the jury that the defendant acted at his peril in selling the spirits to the slave, and therefore, although he might have believed that the negro was acting as the agent of his master, they ought to find the defendant guilty if in point of fact he had not any authority from his master to make the purchase for him. Verdict and judgment for the State and appeal by the defendant.
Attorney-General for State.
Mendenhall and Morehead for defendant.
There was no error in holding that there was no evidence of an authority to the slave to act as the master's agent in buying the spirits. To prevent imposition on trades-people, it is a rule that one who habitually sends his servant to shops and pays for the articles taken up by the servant is bound to pay for all thus taken up, though some of the articles do not come to his use, but are converted by the servant. But that rule has no application here, for it does not seem that these parties ever had any dealings before, or even an acquaintance, or that the defendant knew the negro as being the slave or the servant of Tapscott. If the liquor had not been paid for, but bought on the credit of Tapscott, he certainly would not have been bound to pay for it. But it was not even got in his name, but when the negro asked for it the defendant, without asking who wanted it or who he was, at once sold it to him. There was no semblance of agency in the matter. But if there had been any presumption of it from the circumstances it is directly repelled by the express testimony of the master to the contrary.
The Court is also of opinion that there was no error in the second instruction given. The sale of spirituous liquor to a slave is apparently illegal, and it is incumbent upon one who does the act to justify (106) it by showing that was done under such circumstances as render it lawful. He must show not merely that he thought that such circumstances existed, but that they actually existed. It was said that when one believes he is not doing an unlawful thing there is not the guilty mind necessary to constitute a crime. But that is not correct. When the act is unlawful and voluntary, the quo animo is inferred necessarily from the act. If a piece be brought to a printer for publication which is injurious to the character of another, and the author make such representations and adduce such proofs in support of the charges as induce the printer to believe that they are all true and may, therefore, be lawfully published, yet the publication will be criminal or not as it may happen that the charges may be true or false in point of fact, for by making the publication in derogation of another, the printer holds out and undertakes that the charges are true. Therefore he must maintain their actual truth. It is plain that his belief of their truth does not then denote that innocence of intention in making the publication, which can prevent it from being a crime, if they prove not to be true; and there is, therefore, in that case the guilty mind spoken of. So if one trade with a slave upon the faith of an order or permit in writing in the name of the owner he must take care to see that it is genuine, for if it be not genuine, but a forgery, then the authority required by law for dealing with a slave is wanting and the party would be guilty under the act. Upon that point every person must necessarily take the risk of judging for himself. It must be the same in this case, for the act being against the policy and the letter of the law can only be made innocent by showing facts which in law justify it, and not by showing merely the probability or the party's mistaken belief of the existence of those facts. Those circumstances might well affect the degree of punishment, and seem to have had their effect in reducing the fine here to almost a nominal one. But they could not prevent the act from being a violation of the law, for which the party was liable to conviction. The (107) instruction prayed would, therefore, have been properly refused upon the matter of law if in fact the defendant had believed that the negro was buying the liquor for his master. But in truth it might and ought to have been refused because there was no evidence to raise the point, since, as has been already observed, there was no semblance of an agency in the transactions for the reasons mentioned in disposing of the first exception. A party has no right thus to ask for an instruction upon an abstract proposition which, upon the evidence, has no application to the case in hand.
PER CURIAM. Affirmed.
Cited: S. v. McBrayer, 98 N.C. 624, 628; S. v. Williams, 106 N.C. 649; S. v. Kittelle, 110 N.C. 567, 587; S. v. McDonald, 133 N.C. 685;
S. v. Craft, 168, N.C. 212.
(108)