#### The State v. Daniel May.

When a Judge decides upon a question as being one of law, wh.cn it is really one of fact and -should be submitted to the jury, it is competent for him afterwards to correct his mistake^ and submit the matter to tjfre proper'tribunal.

This was an Indictment under the act of 1779, {Rev. eh. 142,) for stealing a slave. It was in the following form :

“The jurors for the State upon their oaths present, ls that Daniel May, late of the county of Anson, .on &c. “ with force and arms in said county, feloniously did “ steal, take and carry away a certain slave named Bar- “ ry, of the value, &c. the said slave Harry, then and “ there being the property of another, io-wit, the pron perty of Elizabeth Lynch, with an intention to sell said <•' slave to another, contrary &c.

“And the jurors aforesaid, upon their oaths, &c. do “ further present that Daniel May, afterwards, &c. with “ force and arms in the county aforesaid, feloniously by “ seduction, did take and carry away a certain slave na- “ med Harry, of the value &c. the said slave Harry then and there being the property of another, to-wit, of “Elizabeth Lynch, with an intention, &c.”

The evidence for tiio State was altogether circumstantial. It was proved, among other circumstances, that the prisoner was in possession of the slave in South Carolina, and there sold him — that the negro had left his owner against his will, on the 19th or 20th of March, and on the 30th of the same month, the prisoner under a feigned name, sold the negro, also under a fictitious name. Many circumstances were likewise introduced for the purpose of identifying the slave.

After the evidence for the State was closed, the prisoner offered to prove the issuing of a State warrant against one William May, Hardy May and the prisoner, for the same offence for which he was now singly indicted — that William May had absconded from-the State in consequence thereof, having conveyed *329a negro woman and child to Mrs. Lynch, to compensate her for the loss of Harry. He also offered the confessions of William May, that he alone was guilty of stealing the slave. This evidence was objected to by Mr. Solicitor Troy. His Honor, Judge Martin, permitted the prisoner to introduce the State warrant, and to prove the flight of William May, but rejected the other part of the testimony. The prisoner then proved that William May resided about a fourth of a mile from Mrs. Lynch — that he fled immediately after the issuing of the warrant, and had not since returned — that he himself resided twenty-two or twenty-three miles from Mrs. Lynch, near the South-Carolina line and had not been seen in that neighborhood for five or six years.

The Judge, in charging the jury, commented at length on the testimony, and after he liad completed his charge and the jury were about to retire, the counsel for the prisoner requested him to instruct them, that though they were satisfied of the identity of both the slave and the prisoner in the sale in South-Carolina,yet if they believed that William May was the person who actually seduced and conveyed away the slave, and the prisoner only received him knowing him to be stolen, he could not be convicted on that indictment. In reply to this, his Honor remarked in the hearing of the jury,that he did not like to distract the attention of the jury by abstract propositions, when there was no evidence to support them. He then summed up the evidence again, and stated to them that flight after a charge was a suspicious circumstance, and that they would decide whether they believed from these circumstances, that William May had stolen the slave and Daniel May had only received him knowing him to be stolen. His Honor then dwelt at length on the doctrine of presumptive proof, but it is unnecessary to state any other parts of the charge, as they were not excepted to.

The jury returned a verdict of guilty. A rule was obtained to show cause why a new trial should not be granted, 1st. because proper evidence had been rejer-iej, and 2nd. because the Judge had expressed his opinion to the jury on matter of fact. This rule ho* *330ing’ discharged, a motion was then submitted in arrest of judgment, 1st. because it did not appear on the indictment that the theft was committed in the county of An-son, and 2nd. because the name of the owner of the slave was set forth after a scilicit. This motion being overruled, and judgment of death pronounced, the prisoner appealed.

Badger appeared for the State.

No counsel appeared for the prisoner.

'RuvriN, Chief-Justice.

I should very reluctantly reverse the judgment upon the ground of the remark made by the Judge in the hearing of the jury, “that he “ disliked to distraettheir attention by abstract propo- “ sitions, to which there was no evidence since he proceeded immediately to sum up the evidence offered by the prisoner touching the matter to which the instruction prayed for related, and gave the instruction, as prayed for, that if the jury drew from it the conclusion of fact insisted on for the prisoner,' he ought to be acquitted. Undoubtedly, it is error at common law to give such an instruction in a case where there is any evidence to the point, although that given may be manifestly insufficient to establish it. Still more is it erroneous, under our statute, as an expression of the opinion of the Judge upon the sufficiency of the proof But I think it very clear, that if a Judge inadvertently commit an error in the course of a trial, he is bound to correct it, as soon as he is sensible of it; and that he is as much at liberty to correct one of this description as any other. If proper evidence, when offered, be rejected, it may af-terwards be received. If improper evidence be received, it may afterwards be pronounced incompetent, and the jury instructed not to consider it. These are but examples ; and the like holds in all other cases, unless the subject now under consideration furnishes an exception. I do not perceive a reason, why a Judge who conceives himself obliged to decide, and does decide a question, as being one of law, when it is rather one of fact *331to be left to the jury, may not upon a change of opinion, retract his decision and submit the question to the jury. It cannot be imputed to the Judge, that be would criminally use the pretest of correcting himself, as the means of covertly conveying to the jury his opinion upon the facts. If he did, a reversal of his judgment would not be either an appropriate or adequate remedy, but public punishment. I am supposing an error committed honestly and inadvertently, and a sincere desire to correct it for the sake of duly administering the law between the-p'arties. In such a case, I conceive it is not the object of the law, nor the province of an appellate tribunal, to watch for and catch at an inadvertence into which the Judge was betrayed for an instant; but to see that no error was finally committed, and that ultimately the law and justice of the country were truly administered. In the present case, I should have no doubt upon the point, if the Judge, besides submitting the case to the jury for their decision upon the evidence, had explicitly informed them, that he had improvidcntly expressed himself beyond his lawful authority, upon the evidence, and that it was their exclusive province to weigh it, and draw conclusions from it. Without such an explanation, probably the influence of the Judge’s opinion, which the legislature meant to prevent, might remain. With it, there could be no danger that a jury of ordinary intelligence independence and integrity, could be misled ; and to avoid that, is the great purpose of the legislative enactment. But I do not pursue this subject farther, nor express a conclusive opinion upon it; because I do not think the case depends on this point.

I conceive the remark of the Judge was strictly correct — that in law there was no evideuce upon the point to which the instruction was prayed. The error of the court was in submitting it to the jury at all.

The position taken for the prisoner was, that William May and not the prisoner, was the principal felon. As the guilt of the prisoner of the crime charged is presumptive, from his possession of the slave, and sale of him un-fier the circumstances, it was doubtless material for him *332to establish the fact asserted by him, as tending to rebut the presumption against himself. It is time, that both might have been principal felons ; but if William were proved to be clearly so, the prisoner’s possession might be, and probably was derived from him. The question is not then, whether the fact contended for was relevant to the defence; for upon that, there is no doubt. But the question is, by what evidence is it competent to the prisoner, upon this trial, to prove that fact. Direct evidence connecting William with the corpus delicti would certainly have' been admissible. Testimony to the fact of seduction ; to the possession by William anterior to that proved on the prisoner; or to any part of tiie res gestee constituting William’s alleged guilt, would have been both relevant and competent. The prisoner offered nothing of that sort. Instead of it lie offered evidence that William resided near Mrs. Lynch, while the prisoner lived twenty miles off, and had not been in her neighborhood for several years, and that a State’s warrant had been gotten out against them both, as being equally concerned in the theft, and that William fled from the State; which was received. Besides this, he offered evidence, that William confessed that he alone had stolen the slave, and made compensation for him ; which was rejected.

Except the facts of the respective residences of the parties, which of themselves, do not tend to establish guilt in either of the parties, it is obvious, that all the evidence, as well that received as that rejected, consists of the acts and declarations of other persons, to which neither the State nor the prisoner is privy. I think the whole of it was inadmissible, The confession is plainly so. It is mere hearsay. It may seem absurd to one not accustomed to compare proofs, and estimate the weight of testimony according to the tests of veracity within our power, that an unbiassed confession of one man that he is guilty of an offence with which another is charged, should not establish the guilt of him who confesses it, and by consequence, the innocence of the other, but the law must proceed on general principles ; *333and it excludes such a confession upon the ground, that it is hearsay evidence — the words of a stranger to the parties, and not spoken on oath. Indeed, all hearsay might have more or less effect, and from some persons of good character, well known to the jury, it might avail much. Yet it is all rejected, with very few exceptions; which do not in terms or principle extend to this case. Even a judgment upon the plea of guilty could not be offered in evidence for or against another ; much less a bare confession. As a declaration of another establishing his own guilt, the confession of a slave might be used upon the same principle. This, I recollect was attempted in Owen’s case, and also inICimbrough’s ; but in the Supreme Court it was abandoned, and the point is not reported.

If the confession and the act of paying for the slave were properly rejected, the other evidence ought also to have been rejected. I suppose the Court received it out of abundant caution and tenderness to the prisoner. But one principle extends to and excludes the whole. It is, that all was res inter alios acta; and could not be heard without some proof connecting William May with the fact, that is with the perpetration of some deed, entering into the crime itself. No part of it could be received to inculpate the prisoner, if it would have that effect, nor can it exculpate him. It is too uncertain, and too easily fabricated falsely for the purpose of deceiving, to be relied on or acted on in a Court. When received, if not followed by evidence of some fact tending directly to establish an overt act of William in the perpetration of the felony itself, it became altogether irrelevant and ceased to be evidence, for the purpose for which it was offered. For acts or declarations of William May, subsequent to the felony, indicative of a consciousness of guilt in him, when offered as evidence from which his guilt is to be inferred, cannot be stronger than his express admission of guilt.

In my opinion therefore, there was no error in excluding the evidence; nor in the opinion pronounced by tire Judge upon that received.

*334In speaking of the warrant, I must be understood to refer to it as evidence for the purpose «laimed in the instruction the Court was asked to give. It might be very sufficient for other purpsses, as to contradictor discredit a witness or the like.

It is unnecessary for me to say any thing on the motion in arrest of judgment, hecause I agree entirely with the opinion delivered by my brother Judge on that part of the case.

The judgment must be affirmed and a certificate sent to the Superior Court, to proceed to pass sentence of death.

D ANiEi,. Judge.

—The prisoner was indicted for stealing a slave, the property of Elizabeth Lynch, contrary to the act of the General Assembly passed in the year 1779, (c. 11,) and was found guilty by the verdict of a jury. A motion was made in his behalf, first, for a new trial; which the court overruled. In the second place, amotion was made in arrest of judgment; which likewise failed. Judgment was then pronounced} from which the prisoner appealed to this court.

The motion for a new trial rests on two grounds:— .First, that the court rejected as evidence, the declarations made by William May, that he, the said William, stole the slave, and that the prisoner was innocent of the charge. Secondly, that the Judge, on the trial, expressed his opinion on the facts of the case.

I am of opinion, that a new trial cannot be granted on either of the grounds taken by the prisoner. The hearsay declarations of William May, that he committed the crime, were not on oath, nor was there ariy opportunity of a cross-examination. The evidence therefore, according to the plainest principles of law, was properly rejected.

In the second place, the Judge, was requested by the prisoner’s counsel, to charge the jury, that if William May feloniously took the slave, or actually seduced and conveyed away the slave from the possession of the owner, although the prisoner received him knowing him to *335ije stolen, that the prisoner would then be guilty only of receiving stolen goods, and should be acquitted on thein-dictment. In reply to the motion, the Judge remark-eq jn the hearing of the jury, that he did not like to distract the attention of the jury, by abstract propositions, where there was no evidence to support them. The j udge, after these remarks, charged the jury, that the flight of William May, after having been charged by the warrant was a suspicious circumstance, and they would decide whether they believed William May had stolen the slave, and the prisoner had only received him, knowing that ho was stolen. By an act of the General Assembly, passed in the year 1796, c. 4, it is enacted, that it shall not be lawful in any Judge in delivering a charge to a petty jury, to give an opinion whether a fact is-fully or sufficiently proved, such matter being the true office and province of the jury. The expressions complained of, cannot bo considered as a violation of this statute. Suppose William May had then been on his trial for stealing the slave, and the only testimony produced against him had been the fact of issuing the State’s warrant against him Daniel and Hardy May, charging them all as principals, and the flight of William May afterwards, coupled with the local positions of the residences of the parties, and all the other circumstances that were deposed to at the trial of the present prisoner ; could he legally have been convicted ? Surely he could not. All the circumstances taken together would only have raised that slight species of presumption, which in criminal cases weigheth nothing. There was no evidence, which in law, shews that* William May was guilty of stealing the slave. There was no evidence given in, on which, a Judge sitting on the trial of William May could have permitted a jury to convict him of the capital crime of stealing the slave. I do not think the Judge erred in expressing himself as lie did.

The prisoner moved in arrest of judgment, and assigned as reasons, first, that it did not sufficiently appear on the face of the indictment, that the theft was committed in the county of Anson, and secondly, that *336the name of the owner of the slave was set forth in the indictment after a sdlicit.

In tliis case; the county of Anson, is named both in the caption and in the beginning of the indictment. T_hc prisoner is charged in the indictment, that lie “ in said county feloniously did steal, take and carry away &c.” In the English practice the mode of stating the venue, is thus; ‘‘Middlesex” or “ Middlesex to wit,” and this statement is usually in the margin of the indictment. In the body of (lie indictment also, the facts should in general be stated to liave arisen in the county in which the indictment is preferred, so that it may appear that the offence was within the jurisdiction of the Court. But when a county is named even in the margin, the words in the indictment, “ in said county,” or “ county aforesaid,” will have sufficient reference to the county in the margin. (1 Chitty. C. L. 160. 3 Hawk. 175. 2 Hale 166, 180. 2 Hawk, ch. 25. s. 34.) .In this indictment, the words, “in said county, did steal, take and carry away,, a certain slave named Henry,” sufficiently refers to the county of Anson as set forth in the caption and in the beginning of the indictment.

The second reason offered in arrest, is, that the name of the owner of the slave is set forth in the indictment after a sdlicit. It is very usual, in criminal .as well as civil proceedings, to introduce the statement under what is termed a vid elicit or sdlicit, as “that afterwards to wit, on Ac, at &c,” the defendant did &c. or a fact occurred, which it is thought proper to mention. Lord Hobart, speaking of a viddidt, says, “ that its use is to particularize that which was before general, or to explain that which was before doubtful or obscure ; that it must not be contrary to the premises, and neither increase nor diminish, but that it may work a restriction where the former words were not express and special, but so indifferent that they might receive such a restricr tion without apparent injury.” Where the averment is material and enters into the substance of the description of the offence, though laid under a sdlicit, it is conclusive and traversable 5 and if impossible or repugnant tp *337the premises, it will vitiate, otherwise it will not. (Bla. Rep. 495. 2 Saun. 291. n. 1. 1 Chitty. C. L. 186. Rex v Mayor of York, 5 Term 71.) By the act of 1779, c. 11. it is enacted, that “any person or persons who shall hereafter steal, or who shall by violence, seduction or any other means take or convey away any slave or slaves, the property of another, with an intention to sell or dispose of to another, or appropriate to their own use such slave or slaves, being thereof legally convicted, shall be judged guilty of felony, and shall suffer death without the benefit of clergy.” The first count in the indictment, charges that the prisoner, “ feloniously did steal, take and carry away, a certain slave namedHen-rtj, then and there being the property of another, to wit,the property of Elizabeth Lynch;” with an intention to sell the said slave to another, contrary to the statute.— The averment, after the sdlicit, that the property, -was the property of Elixabeth Lynch, was material and is consistent with the premises, or that which went before in the indictment. The scilidt is here introduced to particularize that which was before general ; or to explain that, which without the sdlicit, would have been doubtful or obscure. It pointed out the owner of the pi ave. After a full examination of this case, I am unable to discover any good reason for a new trial or for an arrest of judgment. I think the judgment should be affirmed.

Gaston, Judge.

-This case came before the court at the last term, at which time I had not the honour of being one of its members, and has been kept under advisement until the present term. A majority of the court having concurred in the judgment that there is no error in the proceedings of the Superior Court to justify a reversal of the sentence against the prisoner, J. should have deemed it unnecessary to give any judicial opinion, if my brethren had wholly agreed in the reasons which conducted them to the same result. In the view which I have taken of the case it presents but one difficulty for consideration. Did the Judge err in re-*338jccting a part of the evidence which was offered as tending to show that William May had been guilty of the taking or seduction of the slave from the possession of the owner? If he did err in this respect, the prisoner is entitled to a new trial. If he did not err in this respect, I cannot avoid the conclusion that the prisoner is not entitled to a new trial.

The criminal act imputed to the prisoner might as readily be committed by many as by one. The question of William May’s guilt or innocence was not necessarily connected with that of the guilt or innocence of Daniel. Both might be guilty, or both might be innocent, and a common guilt or a common innocence was as presumable as the guilt of one only. All the testimony then which was o/icrcd to inculpate William, as well that received, as that rejected, if tending to no other purpose, was irrelevant and on that account inadmissible. But proof that certain acts constituting a part of the criminal transaction itsclbwere done by William might have been of high importance to the prisoner by removing so much of the inference of guilt as would be raised were those acts brought home to him. Evidence therefore that William took the negro from the possession of his owner might render it doubtful whether Daniel had participated in the taking. The negro had been removed from his master’s service, and soon afterwards was offered for sale in another State by the prisoner, under circumstances plainly indicating a criminal intent. It nothing else appeared, the inference was scarcely to be resisted that the prisoner had committed the crime charged. Now', proof that the taking was by other than the prisoner, perhaps might repel this inference, not because the guilt of the one shews the innocence of the other, but because proof that specific acts were done by one, weakens or removes the presumption that the same acts were done by another.

It was, therefore, competent for the prisoner to lay before the jury all the circumstances attending the transaction under investigation, and of high import to him, to shew if he could, that the negro had been taken by *339 William and was in William’s possession before the time when the negro was seen in his possession in South Car rol in a. But no fact can be communicated to a jury, or its existence rendered probable but through those means of communication which tiie law allows. The tiling to be proved must not only be relevant, but the testimony Offered must be such as the law sanctions. The issuing of a State’s warrant against William and the prisoner, in which William is first named, of itself is no evidence, and unless necessary to explain or contradict something properly in evidence ought not to have been received. The \i arrant is an accusation merely ; it is not proof of any fact stated in it. As connected with the flight of William it was admissible provided the Alight itself were proper to be given in evidence. Flight after accusation could be received on no other ground than as conduct of William furnishing' a presumption of liis guilt, and amounting to .an implied acknowledgment of it. If this were admissible, I am unable to see any satisfactory reason for rejecting the testimony offered, that William had paid money to tiie injured party in order to stifle a prosecution against him. This seems to me a fact of the same kind with flight after accusation ; an act furnishing a similar presumption of guilt, and strengthening 'this implied acknowledgment of the crime, and the express admission of his guilt by himself would seem to me equally admissible on the same ground.

I am of opinion the whole of the testimony offered in order to shew the taking by William was illegal. It was evidence not of facts or circumstances attending the transaction, but of acts and declarations of a third person, in no way a party to this controversy nor shewn to be connected therewith, acts and declarations subsequent to the transaction from which an inference of the facts of the transaction was attempted to be drawn. Had William been on trial they would have been evidence against him simply because they were his acts and his declarations. It is certainly a general' principle, that neither the declarations nor acts of those who are strangers to the matter in litigation can be received as *340evidence for either party, of the truth of the fact declared or a fact to be inferred from them. Such acts and declarations are excluded as coming under the well lenown rule of “res inter alios acta,” and I am unable to find any principle or authority which will justify an exception to the rule in the present case.

Having arrived at the conclusion that the Judge did not err in rejecting the testimony offered, but that in truth he erred (no doubt from a leaning to the humane sitie) in receiving that which was offered to Shew William May’s guilt, I concur therefore in the opinion of my brethren that there was no evidence on which the Judge could be asked to give the hypothetical instruction required of him, and that he was justified instating the case supposed to be an abstract proposition.

Per Curtam — Judgment aeeirmed, and a writ OE PROCEDENDO ORDERED.