#### The State v. John Chittem.

From Currituck.

The record of the conviction of a principal felon, is admissible on the trial of the accessary, and is conclusive evidence of the conviction of the principal, and prima facie evidence of his guilt.

The rule is the same where the principal felon is a negro, and the accessary a white man, although the conviction was procured by the testimony of negroes, incompent against the accessory.

On the trial of a white man charged as accessary, the principal felon being a negro, the testimony of negroes is admissible upon the question of the principal’s guilt, but not to prove the incitement by the accessary.

The rules of law respecting principal and access ary commented upon.

The prisoner was indicted as an accessory before the fact, to the murder of Joseph S. Lindsey. The indictment charged March, a negro slave, to be the principal felon. On the trial, before his honor Judge Strange, on the last circuit, the prosecuting officer offered in evi*50dence the record of the conviction of March, which was objected to by the Counsel for the prisoner. The objoction was overruled by the presiding Judge, who charged (¡ie jury, that the record was conclusive evidence of the conviction of March, and prima facie evidence of his guiltbut that the prisoner was at liberty if he could, to show, that in fact, the principal March, was not guilty.

Dec. 1828.

The jury found the prisoner guilty, and a motion for a new trial being overruled, and judgment of death awarded, the prisoner appealed.

A copy of the record of the conviction of March, was made a part of the case $ on the indictment against him “negro Lamb” was indorsed'as a witness.

Gaston, for the Appellant,

The act of 1777, (llev. eh. 115, see. 42) declares ne-groes incapable in law, to be witnesses in any case whatever, except against each other. It is indispensable to a conviction of this Defendant of the crime alleged, that the felony charged upon the principal, hath been in fact, committed, and this fact must be legally established, — . (.Foster 342, 343).

It is pretended to be established by a conviction of the slave, upon testimony which the law declares is not competent but against a negro. If the testimony itself is not prima facie evidence of the fact, which is necessary to be established against this Defendant, how can an adjudication, founded upon such testimony, be received as evidence of such fact ? The testimony itself has the superior claim to credit. The Defendant would have the benefit of cross-examination, an opportunity to discredit it. To admit the record, is to make derivative and secondary testimony, of higher authority than that which is original and primary.

If such a record could be received as prima facie evidence, unquestionably it may be met, and how — shall the testimony of negroes be admitted to rebut it ? If not. *51what a dreadful operation is given to the rule — negro testimony is received to convict, but not admitted to acquit! If admitted, then slaves are received directly as witneses in a case not against each other, in direct violation of the law. Nor will it stop here, if received to repel the charge, the like testimony must be admissible to explain and contradict that offered by the Defendant, and support the prima facie evidence originally introduced.— Thus the trial of a free white man, may be carried on almost exclusively, by the means of the testimony of negro slaves.

In truth, the position that the conviction of the principal is prima fade evidence against the accessary, is a legal absurdity. It is conclusive to establish the fact of a conviction, so as to repel any demand of the accessary for a postponement of his trial — but it is not evidence at all against him, of any fact controverted in the trial against the principal, -necessary to be proved against the accessary."'' The reasons alleged arelset forth by Foster, page 365. lie admits it ifot to be conclusive, because it is “res inter alios acta.” If so, it is wholly inadmissible.

If this absurdity has been established to a certain extent, too firmly to be shaken, care will be taken not to carry it beyond the limits, to which it has been heretofore confined.

It. 71. Jones, Attorney-General, for the State.

The Counsel for the Appellant,

objects to the charge of the presiding Judge in the Court below', upon the ground that it is not reconcileable to the law, as prescribed in the latter proviso of the 42d sec. of the act of 1777, (Rev. ch. 115). It is not insisted on (he other side that March, the principal, was convicted by the agency of fraud and collusion} nor that the Court before whofti the conviction was had, wanted jurisdiction to try and convict. But it is insisted, that as the conviction of' March, was procured in some degree, by the evidence of *52Lamb, that the record of that conviction was improperly permitted to go to the jury, for the purposes allowed, and defined by the Court. And that consequently, the judg-men<; appealed from is erroneous.

The case presented by the transcript, possesses all the attributes of a record, and conforms to the practice and usages of the Courts. What are the legal consequences of the record, in the question referred to this Court.

A record, per se, is in no instance, direct and positive evidence of any fact it professes to ascertain, it is presumptive evidence only — for the jury who found the fact, may have inferred it from circumstances and probabilities, without direct or positive evidence. It follows therefore, that if no principle of policy intervened, to prevent suits and litigation, no verdict or judgment could con-clusiveiy establish the existence of any fact. But the law from motives of public consideration, requires that limits should be assigned ..to controversy, wfmn the, Same subject matter; and does not permit, with a single exception, a question 'Which has been once adjudicated by a Court of competent jurisdiction, to be again litigated between the same parties, or their representatives.

Courts of criminal jurisdiction, from necessity, proceed in rem; and it is essential to their jurisdiction in this and all other countries, that their records should be conclusive, evidence of the fact of an acquittal, conviction and judgment, and of all consequences legally resulting from it. The exception adverted to, applies to the relation which an accessary bears to his principal, and permits him to become particeps in lite, and to question and re-examine the propriety of his principal's conviction, which concludes the whole world besides. The record of the conviction of March, was therefore, in the trial of the Appellant, below, properly submitted to the jury by the presiding Judge, and will be so considered by this Court.

*53But it is argued, that there is an alloy in this record— that it is infected with Lamb’s evidence, and that by that infection, it loses the effect and validity of a record, as regards the Appellant, who happens to be a white naan and not of that description of persons contemplated by the 4Zd sec. of the act of 1777.

The argument grants that the document which we call a record, would be a good, bonajide and legal record, if the Appellant had been, as regards colour, in the condition of March and Lamb ; and consequently it must admit that in such a state of things, the judgment of the Court, would have been unexceptionable and free from error. It is then a record according to the argument, for the purpose of proving the fact, that a negro had been convicted as principal in a felony, wherein a negro was prosecuted as accessary before the fact. But it loses instantly the validity and effect of a record for the same purpose and consequences, if it should turn up in the progress of the trial, that the negro was not the acces-sary to the felony before the fact, but that a white man was !

It is said too, “ to be abhorrent to every idea of law, and every sentiment of the human heart, that the evidence of a negro should in any way, direct or circuitous, be used for the purpose of affecting the. life of a white man,” — it is so. But it is not more so, than that the confession of a white man, without an oath, should be indirectly used for the purpose of affecting the life of another human being. For example, suppose that Chittem had been the principal, and March the accessary to the murder of Lindsey, mntatis mutandis, and that the principal had confessed and received judgment of death, the same objection to the competency of the record, and the same force of argument, might have been employed by the counsel for the accessary. The answer to it then, must have been what it is now — that the convicting Court being a Court of competent jurisdiction, the record of that *54conviction, was properly submitted to the jury by the presiding Judge. It is not invalidated by proof, or even the imputation of collusion or fraud, and there is no reason to ¿011^£ but that the jury decided according to the evidence.

Henderson, Judge.

It seems not to admit of a question, but that the record of the conviction and attainder of the principal, is prima facie evidence against the ac-cessary, that the principal committed the crime, which the accessary is charged with inciting. This is the case although the conviction may have been had upon the confession of the principal, the only doubt seemed to be whether the conviction was not conclusive. If the actual guilt of the principal is essential to the criminality of the accessary, it is difficult to see upon what principle the record of his conviction can prove the fact,* for it is perfectly res inter alios acta. The accessary has no opportunity upon the trial of the principal, when they are separately tried, of producing, confronting and examining witnesses. If therefore, we were from this practice, to ascertain what the principle is, it would seem that the guilt of the accessary is independent of that of the principal. But that the law was satisfied with the conviction of the principal; which fact the record in controversy established to all the world, as well strangers, as parties and privies. This idea is much strengthened by the fact, that in cases where the principal has been convicted before the indictment is preferred against the ac-cessary, the indictment against the latter need not charge the guilt of the principal, but only that he lias in such a Court, been duly convicted of the crime, pront patet per recordium, and if such an indictment is good, it is sufficient to prove the facts as laid; it seems then as there is no charge of the guilt of the principal, but only an allegation of his conviction, that the indictment is fully supported by proving the incitement, and the conviction of the principal, without offering any evidence of his *55-guilt. Yet it seems agreed on all hands, that the conviction of the principal, either by outlawry or judgment, must precede the conviction of the accessary, unless the accessary waives such prerequisite, and even then, judgment shall not be pronounced upon the accessary until the principal is convicted, and if afterwards the principal is acquitted, the accessary is thereby discharged. Even in cases where the principal has been outlawed, and the accessary has been tried, convicted, at-tainted arid executed, and afterwards the principal appears, reverses the outlawry, and pleads not guilty to the felony, and it is found for him, this acquittal ipso facto reverses the attainder of the accessary, and his heir may enter upon the lord who lias seized his ancestor’s lands as an escheat, and is not put to his action, but may show all this, in an action brought against him by the lord, for his entry. (Lord Sanchar’s case, 9 Coke 117, citing 4 Edw. 3). I cannot pretend to unravel all this . nor to decide whether Lord Coke is right, when he says that the statute of West. 1 ch. 14, which enacts “ that none be outlawed upon appeal of commandment, force aid or receipt, until he that is appealed of the deed is at-tainted,” is but in affirmance of the common law; I mhst administer it as I find it laid down, and I know of no case, or even dictum, where it is said the record of the conviction, is not admissible as prima fade evidence of the guilt of the principal, upon the trial of the acces-sary.

But we are startled in this case, because negro testimony may have been, and I presume was, admitted against the negro, the principal felon — as it appears that a negro is indorsed, as one of the witnesses on the hill of indictment. This does not vary the caso from others. For if the principal is convicted upon his own confessions, or by the testimony of one who is incompetent against the accessary, as for instance the wife . o the accessary, the record is admissible in the same *56manner, as if it had been founded on testimony which the accessary could not object to. And the present case is «,¶ « . p ,. . . , uotmng more, for the confessions oi the principal, or the evidence of the wife of the accessary, are as inadmissible against the accessary, as the testimony of negroes within the fourth degree; and yet we never heard of those objections. The fact is, they by law are admissible against the principal, and are competent to produce his conviction, and this is sufficient. I admit with the counsel for the Defendant, that this doctrine leads to the introduction of negro testimony on the trial of a white man — that it would have been competent in this case, for the prisoner to have proved by negro testimony, that the principal felon was not guilty. For as by law, the conviction is only prima facie evidence of the guilt of the accessary, and may have been procured by negro testimony, that presumption may be repelled by the same kind of evidence by which it was created — or strengthened by it when attacked. But the incitement, which constitutes the moral guilt of the accused, must be proved by testimony admissible against him.

I will not hazard an opinion what the common law upon the subject was, before the statute of West. 1, and what apparent effect, in the nature of accessorial crimes, the regulations of the statute might have produced.

Hall, Judge.

By our laws, slaves are considered to be human beings and capable of committing crimes, and upon the maxim noscitur a sociis, negro testimony is admissible evidence against them. Upon such evidence in part, has the negro March been convicted, and that conviction was lawful.

An accessary cannot be tried before the principal is convicted, if amenable to justice $ in this case therefore, the prisoner could not be tried before March was convicted, because there can be no accessary without a principal, and proof that there is a principal, can only be established by the record of his conviction.

*57The principal is guilty of one offence, and the acces-sary of another. They are essentially different in their characters — of course the guilt of the one is not the guilt of the other. The record of March’s conviction was uo proof of the prisoner’s guilt, and it was not read for that purpose. It was read for the purpose of establishing the fact that a murder was committed by March, as a prerequisite to the trial of the prisoner. For if the murder was not committed, the prisoner could not be tried as an accessary $ although in a moral point of view he might be as guilty, if it was not committed owing to some accident not under iiis control, as if it had been. But if it is shown by the record that a murder has been committed, then an investigation of the charge against the accessary takes place, on which, evidence of his guilt must be adduced. But of what kind ? Not the record of the conviction of the principal, that only proves the conviction of March ; it neither adds to, nor takes from the guilt or innocence of the prisoner. Competent evidence must be adduced ; not the testimony of slaves, but such as in law is admissible against white citizens.

But the prisoner on his trial, not only had the right of contesting the question of his own guilt, but also of proving, if he could, the innocence of March, because if he could establish that, the law would shield him from further risk, however guilty he may have been, in endeavoring to procure the murder. And as he might disprove March’s guilt, (a question in point of fact, quite different from that of his own) so he might do it by the same kind of testimony, that of negroes, by which in part it was established. If such evidence was used against March, it might be resisted by evidence of the same kind, either by him, or by any other person authorized by law to controvert the question of his guilt. I therefore think that the record of the conviction of March, although in part procured upon negro testimony, was properly re*58ceived to prove the fact of his conviction, so as to make it lawful to go into the trial of the prisoner as accessary, and as far as depended upon that record, to decide upon jj¡s case.

Per Curiam. — Let the judgment he affirmed.