SPENCER vs. THE STATE

SPENCER vs. THE STATE. 1. A declaration, of a character proper for a slave to make, made by him in tbe presence and hearing of a ivbite person from whom it naturally called for a response, is admissible evidence against such white person, if uneontradieted by him, as showing acquiescence in the truth of the statement. 2. The eighteenth section of the fourth chapter of the Penal Code, (Clay’s Digest, 419, § 18,) has not an extra-territorial operation. 3. The terms “steal” and “larceny,” as used in the twenty-fifth section of the fourth chapter of the Penal Code, (Clay’s Digest, 420, § 25,) are technical, and do not include an offence which would not amount to a larceny if committed in this State. ERROR to tbe Circuit Court of Macon. Tried before tbe Hon. E. Pickens. Tbe plaintiff in error was indicted for “inveigling, stealing, carrying and enticing away a slave, witb a view to convert sucb slave to bis own use,” &c. On tbe trial, tbe State offered to prove tbe confessions and declarations of tbe slave, made tbe day after tbe prisoner’s arrest, and in bis presence and bearing, and after tbe slave bad been taken aside by some of tbe company present, and privately conversed witb. These declarations were offered in connection witb other evidence, showing that on tbe declarations being made, some person present asked tbe prisoner if be did not intend to whip tbe slave for making them, to which be replied that “ be did.” Tbe evidence was objected to by tbe prisoner, but was admitted by tbe court. Tbe State also offered to prove other declarations made by tbe slave in tbe presence and bearing of tbe prisoner, after an investigation bad been had before a magistrate, and while tbe prisoner was being conveyed to jail in tbe custody of tbe sheriff, which declarations were not contradicted by tbe prisoner. These declarations were also admitted against tbe objection of tbe prisoner. There was also evidence tending to show that tbe slave bad run away from bis overseer when about to be whipped by him, in the State of Georgia. Tbe court charged tbe jury, “that a runaway slave, either in this State, which slave was run away from a foreign State and found in this, or found in a foreign State, and belonging to a non-resident, was tbe subject of tbe statutory offence of inveigling, stealing, &c., and that under either of tbe above state of facts, tbe prisoner could be considered under tbe indictment.” Tbe admission of the declarations of tbe slave, and tbe charge of tbe court, are now assigned for error. Gunn, for plaintiff in error: 1. Declarations and conversations in presence and bearing of a party, when nncontradicted by him, before they can be received as evidence against him, must be made by such persons and under such circumstances as naturally to call for a contradiction. 1 Greenleaf, § 199; 1 Lit. Sel., Cas. 145; Commonwealth v. Kennedy, 12 Met., 235. Such declarations may often be impertinent, and best rebuked by silence. Child v. Grace, 2 C. & P., 193. 2. Declarations coming from a slave do not come from such a source as to call for a contradiction or reply. Groning v. De-vana, 2 Bailey, 192; 1 M’Cord, 430; Pox v. Lambson,' 3 Hals., 275; Brown v. Lester, Geo. Dec., part 1, 77; 2 vol. Phillips Evidence, p. 59, note 46, and cases there cited. 3. Tbe court erred in charging tbe jury that a slave in a foreign State was tbe subject of tbe statutory offence of inveigling, stealing, &c., as tbe 25th § Clay’s Dig., 420, only uses tbe words steal and larceny. Tbe indictment was found under tbe provisions of tbe 25th, and not tbe 18tk section. Tbe proper charge, therefore, for tbe court to give was, that to make out an offence under tbe 25tk section, tbe slave should have been taken under such circumstances as would have been a larceny at common law. Hawkins v. Tbe State, 8 Porter, 461; and Wisdom’s case, lb., 511; Mooney v. Tbe State, 8 A. R., 328; Murry v. Tbe State, 18 A. R., 727. M. A. Baldwin, Attorney General, for tbe State: 1. Where declarations are made in tbe presence of a party, which jeopardize bis interest or reputation, and not denied by him, it is an admission of tbe truth of such declarations by tbe party whose interest or reputation is affected by them. Tbe true rule, in such cases, seems to be that evidence of this character is admissible, whenever the occasion and the attendant circumstances call for serious admission or denial on his part. Yail v. Strong, 10 Venn., -163; Mattocks v. Lyman, 16 lb., 119 ; Wheat v. Groom, 7 A. R, 349. 2. In the case at bar, the prisoner was asked if ho did not intend to whip the slave for making these statements in his presence, and he replied that he would whip the slave. This will let in the declaration of the slave, for if the party in whose presence, and against whom, the declarations are made, make any answer or reply whatever, the whole conversation in which the declarations are made must be submitted to the jury. Mattock v. Lyman et al., Supra.; Wheat v. Croom, Supra. 3. It is no objection to the admission of these declarations that the declarant was a slave. The reason for their admission is not upon the ground that the party making them could be a competent witness, but they are received upon the ground that they are “verbal acts” connected with the transaction, and calculated to elucidate its character. Rex v. Bartlett, 7 Car. & Payne, 832; Rex v. Smithers, 5 lb., 332; The State v. Ohittem, 2 Dev., 49; Yeatman & Armstead v. Hart, 6 Humph., 375. 4. The charge of the court is in accordance with the recent decisions of this court. The State v. Williams, 15 A. R., 259; The State v. Murray, 18 lb., 727. 5. The bill of exceptions does not disclose what these declarations were which the slave made in presence of prisoner, and as such, it does not appear that the prisoner was prejudiced ' by their admission. 6. The cases in 5th and 7th Car. & Payne, Supra., 332 and 832, show that the parties against whom the declarations were made, were both under arrest. Roscoe, Cri. Ev., top p, 46. [MAJORITY — GrOLDTHWAITE, L] 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 question 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 bearing 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 in 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 reversed, 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.