#### STATE v. RICHARD ATKINSON, ALVIN SHALLINGTON AND BRYAN WILLIAMS.

Where declarations are called out against a party, there is no rule requiring the jury to believe implicitly a part of such declarations favoring the party making them, but it is their duty to consider the whole of the declarations together, to adopt such as they believe, and to reject such as they disbelieve.

Where defendants were indicted for a riot and an assault and battery on a slave, and relied upon declarations made by them at the time of the of- . fense committed, to the effect that they were patrols. Held not to be error for the Court to tell the jury, that their not producing record or other evidence of such appointment, raised a presumption against them.

Indictment for a eiot, tried before Caxdwell, Judge, at the last Fall Term of Johnston Superior Court.

Mrs. Jernigam, testified, that on a certain night after ten o’clock, and after the family had retired, she and her husband were awakened by the cries of one or more of their slaves ; that she went out first, and at a short distance from their dwelling-house, she found one of her husband’s slave’s, Bill, tied with a rope and held by the defendant Shallington ; that she seized it, and in the scuffle which ensued between her and this defendant, the slave made his escape; that she then heard Jack cry out at some short distance saying, “ I am ruined,” and on going to where he was, she found him tied, lying oh the ground, with six wounds inflicted on his breast, abdomen, back and head; that the defendants had two bowie knives, and on her husband’s coming up, two of them branished these weapons over his head, and one of them about his person; that one of the parties said he had come. for revenge, and *66•would have it; that a lighted candle was brought out and was immediately blown out by some one of the defendants. This witness also proved that Atkinson said that Jack had cut his hand, and he would give him fifteen lashes, which was done, the boy then immediately sank down, and his bowels came out. She further proved, that after Jack was cut and tied, and before he was whipped, some one of the parties said that they were acting as patrols.

The defendants offered no evidence, but insisted that these declarations, having been called out by the State, were evidence for them, of the fact, that they were patrols.

The Court charged : That where the declarations of the defendants were called out as evidence against them, the jury were bound to hear and act upon all they said ; but were not bound to believe all the parties said. And the Court also instructed the jury, that where parties were charged with an offense, and they had it in their power to produce a record or other evidence, to discharge them, the law raised a presumption against them, if the evidence was not produced.

The defendants’ counsel excepted to the charge.

Yerdict for the State. Judgment. Appeal by the defendants.

Attorney General, for the State.

Lewis, for the defendants.

Rattle, J.

The first part of his Honor’s instructions to the jury was clearty right. When the declaration of a party is offered in evidence against him, all that he said at the time must go to the jury, and must be considered by them, but there is no rule which requires them to believe every part of the statement, and to return their verdict in accordance with it. On the contrary, they are at liberty to scrutinize the statement ; and if they believe a part of it to be improbable, or at variance with the other facts clearly established, they may reject such part, or hesitate in acting upon it, until other *67proof is brought to sustain it; Lawrence v. Rayner, Busb. Rep. 113.

The other part of the charge is equally Well sustained, both by principle and authority. The defendants were Undoubtedly guilty of the riot, with which they were charged, unless they could defend themselves upon the ground of their authority as patrols, and the burden of proving such authority was upon them. This proof they might have made, either by the production of an order from the records of the county court showing their appointment, or by showing that they were employed as patrols by the patrol committee, as prescribed in the 83d chapter of the Revised Code, section the first The failure or neglect to produce this evidence, necessarily left the presumption to arise that none such was in existence, and, therefore, the defendants were left to rely upon their own declarations, the benefit of which, his Honor gave them in his previous instructions. In the case of the State v. Morrison, 3 Dev. Rep. 299, it was decided that, though an indictment against a person for retailing spirituous liquors by the small measure, wdthout a license, should contain the negative averment, of a want of license, the burden of proving that there was a license, lay upon the defendant. See also, State v. Woodly, 2 Jones’ Rep. 276, where the subject of proving negative averments, in indictments, is fully discussed; and the distinction between the cases, where such averments, must be directly proved by the State, and where they will be inferred from the absence of proof on the part of the defendant, is attempted to be marked out and followed. In this case, there is no negative averment, and the allegation of their being patrols, comes from the defendants; and it is necessary to their defense, and it follows, as a matter of course, that they must prove it by such written or other evidence as the law requires. If the only testimony which they can produce is a part of their own declarations, as proved against them on the part of the State, the law will hold them to be guilty for want of other proof, unless the jury can rely upon their own *68statement of the fact or facts, which constitute the ground of their defense.

In taking this view of the case, we have assumed, for the sake of the argument, that proof of their being patrols would have justified the acts of the defendants. But we are very far fi’om thinking that the authority, which the law confers on patrols, can sanction such outrageous conduct as that disclosed by the bill of exceptions. The extreme punishment which the law allowed them to inflict on an insolent slave, was far short of the deadly “ revenge” for which they said they had gone to the prosecutor’s house, and which they took with their bowie-knives. Admitting them to have been patrols, on account of the manifest excess of their authority, they were guilty of the riot for which they were indieted.

Let it be certified that there is no error in the record.

Peb Curiam, Judgment affirmed.