#### STATE v. NAT, a slave.

It is not to be presumed, that a master will cause his slave to fly upon his being accused of a capital offense, and therefore, the flight of a slave, under such circumstances, operates against him as well as against a white man.

Where, upon the trial of a slave for a capital offense, the credibility of slaves is drawn in question, it was Held legitimate for the Judge to direct the attention of the jury to the fact, that they were fellow servants of the prisoner, and that he might illustrate the matter by comparing it to cases of persons nearly related in blood.

Where witnesses, upon a trial, exhibit feeling and partiality, the presiding Judge may, with propriety, comment upon such deportment, and point it out as a circumstance, calculated to affect their credit.

Indictment for an attempt to commit a rape upon a white woman, tried before Caldwell, Judge, at tlie last Pall Term of Northampton Superior Court.

On the trial, the State offered to prove, that immediately after the offense and the charge against the prisoner, he fled, and though searched for under process, by an officer, he could not be found for a week or two. The defendant’s counsel objected to this evidence, but it was admitted by the Court. The defendant excepted.

One of the counts, in the indictment, charged the defendant to be the property of one Edwards, in whose possession *115he was, and had been, and who superintended his defense.' On the trial, two slaves were introduced by the defendant, to • show an alibi, to wit, Sam and his wife Lucy. It appeared that Lucy was domiciled in the family of Mr. Edwards at the time the offense was committed, and that Sam, her husband, came to see her once in three weeks. In the charge of the Court to the jury, his Honor said, there was a conflict in the testimony, as to the whereabouts of the defendant, at the time the offense was committed ; that a jury, when they came to sit in judgment upon the integrity of witnesses, had a right to look-, and ought to look, to the relation in which they stand to the parties and to the cause; that it Was settled by authority, that when near relations deposed for near relations, their testimony was to be received, and ought to be received, with many grains of allowance ; and left it to the jury to say, how-far the relation of the said Sam and wife Lucy to the said Edwards, and their being the fellow servants of the prisoner, affected their credit; Defendant again excepted.

Sam and Lucy, on their respective examinations, showed much feeling and partiality for the prisoner, and the Court, upon this part of the case, said to the jury, that it was not always necessary to introdrrce witnesses to impeach a witness ; that a witness might discredit himself by his deportment on the stand, and he left it to the jury to say, whether these two ne-groes were self-possessed and impartial, and how far their credit was affected by their deportment, when giving their evidence. Defendant’s counsel again excepted.

The jury found the defendant guilty. There was judgment, and áp-peal by the prisoner.

Attorney General, for the State.

■Barnes and Ilcvrdy, for the defendant.

Battle, L.

The counsel for the prisoner have, in their bill of exceptions, assigned two errors as having been committed on the trial by the presiding Judge; the first, in the *116admission of improper testimony; and the second, in an improper instruction to the jury.

The testimony to which objection was made, was, that soon after the oifense was alleged to have been committed, the prisoner had fled, and could not be found by the officer, who went with process for the purpose of apprehending him. The counsel admit that, had the prisoner been a free man, the testimony would have been proper, according to a well established rule of evidence in the criminal law on that subject. See Roscoe’s Crim. Ev. page 17, of 5 Am. from 3 Lon. Ed. The reason for the rule, as they contend, is, that a free man has full control of his own actions, and upon being charged, or upon the apprehension of being charged, with a crime, may go or stay as he pleases, while a slave is bound absolutely by the will of his master, and must go or stay, not as he himself may choose, but as his master may order. Hence, the counsel conclude, that as the slave may be sent or carried off by his owner against his will, the prosecutor ought not to be allowed to prove that he could not be found, as evidence of his flight, unless it be first shown that his absence was caused by his own voluntary act. In support of this conclusion, it is further urged, that the law presumes the slave is engaged in the performance of his duty to his master, and that if he be absent, it is because his master has sent him off either on business, or to avoid the danger of losing him, should he be taken and tried. The argument is an ingenious one, and was made very plausible by the manner in which it was stated and illustrated by the counsel; but it cannot stand the test of critical examination. Its fallacy consists in assuming, as a presumption, that the master will commit a great crime to avoid the risk of losing his slave. The presumption of guilt arising from flight at the time, or soon after an offense has been committed, is not at all conclusive against the person charged, and may be weakened, or entirely rebutted by other circumstances and this may just as well apply to slaves as to free persons. If it be proved that the slave did not fly of his pwn accord, .but was carried or sent off by his master, then *117tlié presumption against him, arising from his absence, will be entirely repelled. In the present case, the testimony was offered to prove, “ that immediately after the offense, and the charge against the prisoner, he fled,” and could not be found for a week or two by an officer with process. From this, we cannot understand otherwise, than that the proof was offered to show that he fled voluntarily, and not that he was sent off and kept out of the way by his master. Such testimony was as well calculated, we think, to raise a presumption of guilt against a slave, as it would have been against a free man. Before the exception, as contended for, in favor of a slave ean be admitted, it must be proved by him that his flight was not his voluntary act, but was coerced by his master.

The exception to the charge of his Honor is equally untenable. It is founded upon a misapprehension of the instruction which was given to the jury. The credibility of the witnesses, Lucy and Sam, who were introduced for the prisoner to prove an alibi, was impeached. One ground of impeachment was, their relation to the prisoner as his fellow servants, and his Honor intended to illustrate how that might operate against the effect of their testimony, by comparing it to the ease of persons nearly related to eaeh other by blood. When a mother is called as a witness to testify in favor of a son on a capital trial, it has been decided in the case of the State v. Ellington, 7 Ire. Rep. 67, and State v. Nash, 8 Ire. Rep. 35, that such a near relationship did affect the credit of the witness. In like manner the relationship of being fellow servants, his Honor thought, and we think, affected the, credit of the witnesses, and whether that was communicated to the jury, in one form of expression ór another, it did. not violate the law, when they were told at the same time, that 'they were to he judges of the extent to which the credit of the witnesses was impaired by such relationship. ' >

The latter part of the charge was based upon what was stated as a fact, and which must have been apparent both to the Court and j ury, that the witnesses, while under examination^ *118showed much feeling. Such a fact, transpiring in the presence of the Court and jury, his Honor had a right to notice and comment upon, and we think his remarks very pertinent and proper, and that the prisoner has no just cause to complain of them. The motion for a new trial must be overruled; and as we find no error in the record, it must be so certified to the Superior Court of law, for the county of Northampton, to the end, that sentence may be pronounced upon the prisoner.

PeR Curiam, Judgment affirmed.