29 S.C.L. 150

State v. Hill

Decided December 15, 1843

Court of Appeals of South Carolina · decided 1843-12-15

Before O’Neall, J. at Chester, Fall Term, 1843. The defendant was indicted for an assault and battery on, and false imprisonment of, Judah Bowser, and her daughters. Malinda, Tabilha and and Lizzy, free negroes. On the 27th September, 1842, a gentleman who had heard that the negroes were about to be carried off, pursued and overtook them in Chester district, some short distance from the place where they lived. The negroes were in two little wagons, a short distance apart, accompanied and controlled by two men of the name of Smith, whom the defendant had employed to take them out of the State. The defendant was a short distance ahead, and when overtaken and asked where he was going with the negroes, said he was taking them to Georgia. The negroes manifested great unwillingness to go. In the defendant’s presence they said, “he was dragging them off.” He was advised to return the negroes to their home, and assert his claim legally, if he had any. He refused to do this, and said he would carry them off. He said he had a bill of sale or titles, and offered to shew whatever might be his claim. He, (the witness,) told him, (defendant,) that Wm. Worthy, who died the July before, had had the care of those negroes, and that his executor, Preston Worthy, had succeeded to the same care. This gentleman, (Herndon Chalk,) finding he could not prevail, by reasoning and persuasion, with the defendant, returned home. The defendant and his party were pursued by Wyatt and Preston Worthy, and Uriah Wright. The negroes and the Smiths were overtaken just beyond Ashford’s ferry, in Newberry district. When overtaken, the old woman, Judah, and the other three women, were walking, followed by one of the Smiths, who was urging them on. The old-woman was crying. The defendant was not in company when they overtook' them.. It was believed by the witnesses that he had hid in the neighborhood, as a man whom they thought to be him, was seen to slip out of a house as they approached, and soon disappeared. The defendant soon came up, claimed the negroes, said they ought to be his, if he could get his right. He pulled out and offered to shew his supposed title. He said he had hired the Smiths to haul the negroes to Georgia. The defendant said he took the old woman, Judah, by her arm, and led her out to the wagon from her house, in Chester district. The defendant told the prosecutor, Preston Worthy, that if he had known he had any thing to do with the negroes, he (defendant,) would not have troubled them. From 1809, to September, 1842, thirty-three years, the old woman, Judah, and her family, had lived and passed as free. In 1826, a recovery in Fairfield district was had against Richard Hill, the defendant’s father, Daniel Mobley, and Meredith Meadows, in writs of ravishment of ward, establishing the freedom of Malinda and two other children of Judah. The pleading' in that case shewed, that Judah had once been the slave of Mrs. Funderburk, by whom she had been manumitted, by deed, in 1809. This deed was procured by the defendant and his brother (some short time before the negroes were seized,) from the clerk’s office, at Winnsboro’, Fairfield district, and taken to the office of Mr. Hammond, who returned to the clerk’s office, and there examined it. The last time he saw it, it was in the defendant’s possession. He subsequently searched the clerk’s office for it and it could not be found. He also searched the records, and could not find it on record. Mrs. Funderburk was the widow of Henry Funderburk, who, in his life time, owned Judah. She lived in Fairfield district — was the grand-mother of Richard Hill’s wife, and the great-grand-mother of the defendant. She was a very aged woman. To manumit Judah, she procured a deed to be drawn by David R. Evans; and David R. Coleman, one of the magistrates before whom it was executed, said he acted according to Evans' instructions. David R. Coleman said he acted as a justice of the quorum, and with Esq. Mabry, and the freeholders, (one of whom he remembered was Henry Funderburk, the grand-son of Mrs. Funderburk,) made the inquiries required by the Act of 1800, and made the proper endorsement on the deed, as required by the same Act. This was in 1809, and he said Esq: Mabry told him the deed was recorded. He was asked, and answered, that the Legislature intending to appoint him a justice of the quorum, in the place of Moses Hill, by mistake appointed Daniel Coleman, when there was no such man in the district. He qualified and acted. The defendant presented and proved a bill of sale from Henry Funderburk and Mabry, executed in 1835, in consideration of $100, relinquishing all claim to Judah Bowser and her family. The grantor, Henry Funderburk, was one of the jury of emancipation. The defendant lived near to his father Richard, and knew well of the progress and result of the suit against him. The presiding Judge instructed the jury, that if the negroes were free, the assault and battery on Judah Bowser, and the false imprisonment of all the negroes, was established. The question of freedom was presented to them, and the various objections of the defendant were considered : 1st. The court was of opinion, that after a lapse of 33 years, the official acts of David R. Coleman ought not to be objected to, for irregularity in his appointment. He was defacto if not de jure, a justice of the quorum. 2d. If the jury believed that the defendant had suppressed the deed of manumission, by obtaining it from the clerk’s office and destroying or withholding it, then evei’y presumption was against him. If the deed was deposited to be recorded, and by the clerk’s neglect it was not done, then it would operate as against the descendants and heirs of Mrs. Funderburk, as if it had been recorded. 3d. The effect of the recovery against Richard Hill and others,- from the provisions of our Acts of the Legislature, was prima facie evidence of freedom against, the world, so far as to rebut the presumption of slavery from color, 4th. That all the preceding grounds of objection were immaterial. That after twenty years of uninterrupted enjoyment of freedom, the law would presume every thing done which was necessary to give it effect. The jury convicted the defendant, generally. The defendant appealed in the case, and moved the Court of Appeals, in arrest of judgment, and for a new trial, on the following grounds, -viz : In arrest of judgment:— - 1st. Because the crime charged against the defendant was not an indictable offence, in this State, until the Act of 1837 was passed, and the defendant is not indicted under that Act of Assembly. 2d. Because the indictment does not allege that the defendant knew the negroes were free, which was indispensible to establish his guilt. For a new trial:— 1st. Because the court admitted the record in the case of Allen De Graffenreid, guardian, vs. Richard Hill et al. in evidence in this case, when the defendant was a stranger to that record. 2d. Because the court charged the jury, it was not necessary for the indictment to charge that the defendant knew the negroes were free. 3d. Because the court permitted the State to prove that the negroes had passed as free persons of color,, when it was said they had been manumitted, by deed, in 1809, without any proof of the loss or destruction of that deed. 4th. Because it was clearly pro,ved that David R. Coleman, who acted as a justice of quorum, when Judah was supposed to have been manumitted, was not in fact, or in law, a justice of the quorum, and there was no certificate as required by the Act of 1800, given to Judah, and the deed of manumission was not recorded as required by that Act, and still his Honor charged the jury all these defects could not aid or avail the defendant. 5th. Because his Honor said to the jury, if you believe he has the deed of manumission, that will cure all the defects ; when there was no legal evidence he had the deed, and if he had, that could not alter its character or legal effect. 6th. Because his Honor said to the jury, if you find the negroes are free, then you must find the defendant guilty. 7th. Because his Honor charged the jury that when a negro had passed as a free person for twenty years, that was conclusive evidence of freedom, and such negro was as free as any negro could be in this State, and such presumption could not be rebutted by proof. 8th. Because the court should, when a motion was made to that effect, have charged the jury, “that if they were of opinion that the.defendant took the negroes, really believing them to be his, under his bill of sale, or that he had a right to capture them under the Act of 1800, he should be protected.” This his Honor declined doing, in which it is supposed there was error. 9th. Because the court charged the jury, that if the deed of manumission were lodged in the clerk’s office, to be recorded, that was a sufficient compliance with the Act of Assembly of 1800. 10th. Because the court, in his charge, said to the jury, it may be, you will think his (the defendant’s) purchase of that old or stale claim, under which he claimed the negroes, will make against him.

Decided 1843-12-15

¶1 Curia, per

O’Neall, J.

¶2The grounds of appeal are so numerous and various, that I shall not attempt to consider them seriatim. I will endeavor to so class and arrange them, as to consider them all under their appropriate heads. There are, as I understand, two distinct objections urged in arrest of judgment. The first is, that the offence charged in the indictment is not punishable at common law.

¶3Free negroes, as the law of South Carolina has been repeatedly ruled, have all the rights of property and protection, which white persons possess, with the exception that they cannot, with force, repel force, exhibited by a white man, and a less provocation might excuse a white man, in *159an assault and battery upon a free negro, than would in the case of a white person. There is no doubt that false imprisonment is an old common law offence. It was, I suppose, to this the defendant’s objection applies, for certainly, he never could have doubted, that an assault and battery of a free negro, was an indictable offence. If ever any such doubt existed, it ought to have been removed by the case of the State vs. Harden, decided by the Court of Appeals, in 1832, (and which, I hope, will be appended in a note to the report of this case.) That case, in deciding that a violation of the person of a free negro was an indictable offence, virtually decided that a violation of his liberty was also; for both depend upon the principle that he, as a natural person, is entitled to a legal protection in life, liberty and property.

¶4That the Act of 1837 does not effect those old common law offences, is very plain from its words. It provides, (6 Stat. at Large, 674,) “whoever shall be convicted of the forcible or fraudulent abduction, or assisting in the forcible and fraudulent abduction, of any free person living within this State, with intent to deprive him or her of his or her liberty, shall be fined not less than $1000, and imprisoned not less than twelve months.” This created a new of-fence, the abduction of a free negro- with an intent to deprive him or her of liberty. It is essentially different from an assault and battery, or a false imprisonment. It is true, the ingredients of these offences may exist in the offence of abduction, but it requires something more than is necessary to make them out.

¶5The second ground in arrest of judgment is, that it was necessary to allege in the indictment, that the defendant knew that the negroes were free. But the answer to that is plain, the act of assault and battery, or imprisonment of a free negro, is unlawful; and when an act done, is, in itself, unlawful, a scienter is unnecessary. There is, indeed, no distinction between an indictment for an assault and battery on, or a false imprisonment of, a free negro and a white man, unless it is to allege that the person, the subject of the outrage, is a free negro. That was done in this case, and, therefore, the indictment is above exception.

¶6 *1601st. The first ground for new trial is, that the record in the case of DeGraffenreid, guardian, vs. Hill, was inadmissible evidence. It was admitted as prima facie evidence of freedom, to rebut the presumption of slavery, arising from color. It is provided in the Act of 1740, 7 Stat. 397, that a negro, claiming freedom, may have the question tried in a writ of Ravishment of Ward, to be brought by his or her guardian, and “if judgment shall be given for the plaintiff, a special entry shall be made, declaring that the ward of the plaintiff is free.”

¶7What would be the value of such an entry, if it was only to operate against the plaintiff, and his privies 1 The recovery without such an entry would have had that effect. This legal provision, it seems to me, places the record upon the footing that it is to stand, as the negro’s title to freedom, and is to be referred to in all time to come, to shew it, That the record was admissible, independent of that provision, may be seen by referring to 1st Stark, on Evidence, 243, sect. 84. It is there stated that recoveries in cases of custom, pedigree and general reputation, are evidence against all persons. The freedom of a negro depends often upon pedigree or reputation, and sometimes on both combined; so that under this rule, the evidence w7as clearly admissible.

¶82d. 'i he next ground for new trial, worth considering, is made up of various objections to the effect of the deed of emancipation. The first, that David R. Coleman was not appointed a justice of the quorum, for Fairfield district, needs no other answer, than a reference to McBee vs. Hoke, decided this term. He was defacto, if not dejure, a justice of quorum, and that is enough ; the proof shewed that the deed of emancipation was once in the clerk’s office, and that it was not there now, and a strong belief was created that the defendant surreptitiously possessed himself of it. Under such circumstances, proof of its contents was admissible. The defendant, himself, however, swore Mr. Coleman, and proved by him that the deed was, in all respects, executed in conformity to the Act of 1800. No record of it could, however, be found in the clerk’s office. The case of Monk vs. Jenkins, 2 Hill’s Ch. Rep. 9, considered and disposed of all the objections arising out of a similar state of things. *161In that case, it was held that the deposit of the deed in the clerk’s office, was a sufficient record, and that the legal presumption was, that it was there in due time. If it was necessary, that opinion might be vindicated by many reasons, but, I think, it may be safely left to its own defence.

¶93. This case, however, need not be placed upon the execution of the deed, or any thing appertaining to it. For I thought that a lapse of time, beyond twenty years, stood in place of a deed, and all its legal accompanyments. The correctness of this view is questioned by the various grounds which I consider as making the third ground of appeal for new trial. On that point it is only necessary to refer to Miller, administrator of Burnett, vs. Reigne, 2 Hill, 592, in which it was held, that twenty years enjoyment of liberty, presumed the execution of a deed of emancipation, with all the solemnities required by the Act of 1800. Here, there was a lapse of thirty-three years from the time liberty began. It was exactly the case in which the legal presumption stood in the place of the deed, the certificate of the magistrate and freeholders, the record and the office copy, for certain proof about all these matters was not to be had. Hence, lapse of time was evidence of, or a muniment of, title, which the jury was as much bound to give effect to, as to the deed itself, accompanied by every thing which the Act of 1800 requires to make it good and legal.

¶10The only other ground to be noticed is the defendant’s eighth ground, which constitutes, here, the fourth objection to the verdict. After I had fully instructed the jury upon the whole case, including the law and facts, Mr. Thompson asked that I would instruct them as his ground indicates. I thought that, in substance, the instruction had been given, denying the doctrine of that ground. For it, in substance, supposes that ignorance of the law will excuse a man in the commission of a crime. That is so much a violation of-first principles, that I cannot bring my mind to discuss it.

¶11The motion in arrest of judgment and for new trial is dismissed.

Richardson, Evans, Butler and Wardlaw, JJ. concurred.