Opinion
(June Term, 1860.)
In an action of trespass vi et armis, for killing plaintiff's slave, where it had been proved that the defendant shot some one in the night-time, near a particular spot, at a stated hour, and the plaintiff's slave was found about that time, near the place, badly wounded with gunshot, it was Held competent to show that there was no rumor or report in the neighborhood that any other person had been shot about that time and near that place.
TRESPASS vi et armis, tried before Dick, J., at last Spring Term of PASQUOTANK.
Hinton and Hines for plaintiff.
Jordan for defendant.
It was proved that on the night of 22 September, about the hour of 2 o'clock a. m., the defendant shot a person near the shelter of one E. Leigh, in the county of Perquimans, whom he supposed to be a certain runaway slave named Tony; that he first hailed the person shot, and commanded him to stop, which he refused to do; that the person alluded to was shot about three-fourths of a mile from the residence of the plaintiff; that it was so dark as to make it impossible to distinguish one person from another; that about 4 o'clock of the same morning the overseer of the plaintiff was aroused, and found the boy Jeff (the slave in question) badly shot in the back part of the left thigh, just above the knee joint; that on the next morning the premises of Leigh, and the neighboring swamps, were searched for the wounded person, but no trace of any one could be found; that on the same day the defendant remarked to the overseer that "he understood one of Newby's negroes was shot," to which the other replied, "Yes, and badly shot." To this the defendant rejoined that "he shot him, but supposed he was a runaway; that he hailed him, but he ran the faster, and that when shot, he never saw a negro jump so high in his life."
The plaintiff's counsel then asked the witness whether he had heard of any other person being shot in the neighborhood and at that time, which was objected to and ruled out. Plaintiff excepted.
It was in proof that the slave died of the injury received, in a few days thereafter.
Verdict for the defendant. Judgment, and appeal by the (352) plaintiff.
It being admitted that the defendant, about 2 o'clock at night, had shot a negro who was running from him, the fact that about two hours afterwards, and within three-quarters of a mile of the place, a negro of the plaintiff was found who had been recently badly injured with a gunshot wound in the back part of his leg, as it seems to us, raised a violent presumption on which the jury ought to have acted, in the absence of any evidence to weaken or rebut it, that this was the negro who had been shot by the defendant; and we at first inclined to the opinion that the exception of the plaintiff, because of the rejection of the negative evidence which he wished to offer, could not be sustained, on the ground that it was uncalled for, and had no bearing on the matter at issue. But the question presented a different view when our attention was called to the fact that the jury had, by a verdict which his Honor permitted to stand, refused to draw the inference from the facts above stated that the defendant had shot the negro of the plaintiff.
The inference was susceptible of being weakened by positive proof, as if the defendant had proved that just after he shot, another negro was found injured by a gunshot wound at the place where he shot, or in the swamp, which was not far off; so it was susceptible of being strengthened by negative proof, as that upon search being made no wounded negro was found near the place or in the swamp. Proof to this effect was received, and the question is, Was it not admissible to carry it further by asking the witnesses if they knew that any other negro had been shot in that neighborhood on that night, and, if they did not know it, "had they heard that any other person was shot in that neighborhood on that night?" We are satisfied that negative proof of this kind was calculated to make a jury adopt the inference more readily. (353) Upon what ground, therefore, was it proper to reject it?
The defendant's counsel insisted that it was properly rejected because it is a species of hearsay or second-hand evidence.
That position is not true. The fact that the witness did not know of any other person having been shot in that neighborhood on that night, that there was no rumor to that effect, and that the witness had not heard of any other person having been shot on that night, was certainly primary, and not secondary, evidence; for the point was, had he heard of any such occurrence, and not whether what he may have heard was true or untrue. By way of explanation: Suppose the defendant had asked the witness, "Did you not hear A, say that his negro was shot on that night." This would be excluded as hearsay or secondary evidence, for the object being to prove, not merely that A. had said so, but that in point of fact the negro of A. was shot, so as to weaken the inference that the negro who was shot by the defendant was the plaintiff's negro. The testimony of A. would be required as the primary evidence of the truth of the fact, and what the witness had heard A. say would be but hearsay or secondhand evidence; for like the copy of a deed, it presupposes that better evidence exists, and the failure to introduce it casts a suspicion upon that whereto it is offered as a substitute. But in our case the question whether there was any rumor, or whether the witness had heard that another person had been shot on that night, so far from presupposing that better evidence of the fact existed, assumes that such was not the fact, and of course there could be no evidence of it — the object of the evidence being simply to aid the inference that the negro who was shot by the defendant was the plaintiff's negro, by excluding even a conjecture that it was some other negro by the substantive and primary fact that the witness had not heard that any other person had been shot on that night, which it had a tendency to do; in the same way as the fact that, upon search being made, no other negro was found near the place or in the swamp. As a parallel case, the fact that a resident (354) of a town did not know of and had not heard of any smallpox in that town would be primary and, in our opinion, admissible evidence to support a negative allegation that the smallpox did not prevail in that town.
We are satisfied that the evidence ought not to have been rejected on the ground of its being hearsay or second-hand, and as no other ground was suggested by the learned counsel, and no authority was cited to show that it was inadmissible, we are of opinion that it ought to have been admitted. There must be a
PER CURIAM. Venire de novo.
Cited: Horton v. Green, 66 N.C. 599.