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4 S.C.L. 463

State v. Hope

Supreme Court of South Carolina

Decided January 15, 1811

Supreme Court of South Carolina · decided 1811-01-15

The defendants were found guilty upon an indictment for stealing a female negro slav|e, before-, J., in Charleston. The case was this : A Mr. Durke of Spartanburg district, sent the negro in question, by his agent, named Couch, to sell in Charleston. Couch, an illiterate and simple man, falls in w*di Cashman, who offers to procure a chap, and carries him to Brown’s, a place where Hope and Brown were. Hope said his wife wished such a servant.

Decided 1811-01-15

¶119th January, 1811.

Nott, J.,

¶2declared the opinion of himself, Grimace, and Brevard, Justices, in favor of a new trial, on the. ground that Couch wab inte,rested in proving the forgery, and, therefore, was not an admissible witness. Suppose there had been no other evidence;, of the forgery, and the bill of sale and receipt Were genuine ; and by this testimony the negro should be restored to Durke, or sold ageing and the money paid to him. Would not Couch’s interest palpably and directly appear 1 Whether these writings be true or false, ought not, therefore, to depend on his testimony. This is a case within the reason and spirit of the rule. The interest is as certain, and direct, as in the case of an indictment for forgery. The temptation to perjury is equal. It seems probable that the prisoners are, guilty, but the verdict being in part founded on illegal evidence, ought to be set aside. There is nothing in the other objection. In the commission of larceny, a party may commit swindling. If two crimes are committed by the same act, or series of acts, the malefactor ought to be prosecuted for the greater crinfie, which includes the less.

Bay, and Smith, Justices.', dissented, as to the first point, in relation to Couch’s testimony. They were of opinion lhathis interest was not sufficient to exclude him from giving evidence of the forgery ; especially, as Hope, one of the defendants,'.had, before the trial, declared on oath that Brown, another of the defendants, committed the forgery. The evidence was, at any rate, good against Hope. Hope, had disavowed the purchase. Brown did not claim under the bill of sale, nor Cashman. The evidence of the forgery went to prove an unlawful combination, to obtain fraudulent possession of the negro, not to defeat the bill of sale, "¿fee.
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