The defendant was charged, as a free person of color, with carrying a shot-gun. It was proved that the defendant carried a shot-gun as charged in the indictment.

A witness proved that the defendant's father was a man of dark color and had kinky hair; that he was a shade darker than the defendant himself, and his hair was about as much kinked.

A Mr. Green proved that he and the defendant, with others, came to this court upon a steam-boat from Wilmington, and that the price of a passage for white persons was one dollar; that while on the way, the defendant handed him one dollar, and requested him to pay the fare of himself and his brother with that sum, saying he understood that the fare of white persons was one dollar and colored persons half price, and that he and his brother were colored persons, and that the witness accordingly paid the fare of both of them with one dollar.

The defendant's counsel insisted, in his argument, that his client was a white man, and called upon the jury to inspect him and judge for themselves.

The Court charged the jury "that every person who had one-sixteenth of negro blood in his veins, was a free negro. That the descendants of negro ancestors became free white persons, not by being removed in generation only, but by that, coupled with purification of blood, for if it was not so, then persons of half negro blood might, and would, become free white persons by law." "Take," said his Honor, "two families, the father of one family a white person and the mother a negro, and the father of the other family a negro and the mother a white woman; the members of these families are of the half blood, and in the first generation from a negro, let them intermarry, and their descendants intermarry, until by generation, they are removed beyond the fourth generation from the pure negro ancestors, the father of the one, and the mother of the other, from whom they are descended, are they any the less free negroes in the fifth than they were in the first generation from their negro ancestors? They still have half negro blood in their veins, and that is all they had in the first generation. In the fourth generation they were unquestionably free negroes, but they certainly had no more negro blood than their children."

"Can it be then," continued his Honor, "that a remove by one generation has the effect, in law, of turning a half negro into a free white man in spite of the color of his skin or the kinking of his hair? It seems to me both unreasonable and absurd, and therefore I cannot put such a construction upon the 79th section of the 107th chapter of the Act of Assembly, (Revised Code) declaring who shall be deemed free negroes. My construction of the statute is, that no person in the fifth generation from a negro ancestor becomes a free white person, unless one ancestor in each generation was a white person; that is to say, unless there shall be such a purification of negro blood by the admixture of white blood as will reduce the quantity below the one-sixteenth part; and unless there is such purification it makes no difference how many generations you should have to go back to find a pure negro ancestor; even though it should be a hundred, still the person is a free negro."

His Honor, therefore, instructed the jury, "if from inspection of the defendant, the evidence as to the color of his father, and his own declarations made upon the steam-boat, taken all together, they should find that he had as much as one-sixteenth of negro blood in him, he was a free negro, and they should so find."

The defendant's counsel excepted to the charge.

The verdict was against the defendant. Judgment and appeal.

BATTLE, J.

The defendant was indicted as a "free person of color," for carrying about his person a shot-gun, contrary to 66th section of the 107th chapter of the Revised Code. The 79th section of the same chapter declares, "That all free persons descended from negro ancestors to the fourth generation inclusive, though one ancestor of each generation may have been a white person, shall be deemed free negroes and persons of mixed blood." The defendant was convicted and moved for a new trial upon two grounds: First. Because there was no evidence that he was a free negro. Secondly. Because the Judge erred in his instructions to the jury upon the meaning of the statute which prescribes who shall be considered such a person.

The counsel for the defendant insists upon both grounds in his argument before us, but relies mainly on the last.

1st. We think there was testimony sufficient to be left to the jury, tending to prove that the defendant was a free negro. The evidence introduced to show the color of his father — the kind of hair which he and his father both had, was competent, and that, together with his confessions, and his own color, which his own counsel called upon the jury to inspect, was sufficient for the consideration of the jury upon the question submitted to them. Upon its weight and its sufficiency to establish the fact of his being a free negro, it was for them alone to decide.

2d. The main objection to the charge of the Judge is that he, instead of following the rule laid down by the 79th section of the statute, to determine who should be regarded as a free negro within the meaning of the 66th section, misled the jury by making the quantity of the negro blood the test by which to ascertain the fact. Taking the charge altogether, we think that it is not obnoxious to censure, and that it lays down the rule correctly according to the statute. By that, as we understand it, no person can cease to be a free negro, unless he has reached the fifth generation from his African ancestor, with a white father or mother in each of the first, second, or third and fourth generations. In that case a simple arithmetical calculation will show that he will not have a sixteenth part of African blood in his veins.

That part of his charge which speaks of the marriage of persons belonging to two families, both of which have a mixture of white and negro blood, was intended solely to guard the jury against being misled by any other rule than that to which we have already adverted, to wit, that there must be a white father or mother in each generation from the African ancestor down to the fifth, to exclude the descendant from the operation of the statute. With a view to that rule, the Judge was right, for it is a mathematical truth, in saying that the person in the fourth generation would necessarily have a sixteenth part of negro blood in him.

The motion for a new trial being denied him, the defendant, through his counsel, moves here in arrest of the judgment, because he is charged, in the indictment, as "a free person of color," whereas the section of the act, under which he is indicted, makes it penal for any "free negro" to carry arms about his person. The counsel contends that, although the terms "free negro" and "free person of color" are often used in the 107th chapter of the Revised Code, as synonymous, yet it is not always the case, and that therefore the indictment, upon the section in question, cannot be sustained in substituting the latter description of the person for the former.

There can be no doubt that the two terms are sometimes used in the act to which the counsel refers, as synonymous; as, for instance in the 11th and 13th sections, which prohibit free negroes from working in certain swamps without a certificate; and we also think, with the counsel, that there is at least one instance, (and one is sufficient for his purpose,) in which the terms cannot be so regarded. The 44th section declares that "any slave or free negro, or free person of color convicted by due course of law, of an assault with intent to commit a rape upon the body of a white female, shall suffer death." Here, three classes of persons seem to be included, to wit, slaves, free negroes, and free persons of color. The last section of the act to which we referred in giving our opinion upon the motion for a new trial, defines who shall be deemed free negroes and persons of mixed blood, but does not declare who shall be embraced under the term "free persons of color." The amendment to the constitution of the State, Art. 1, sec. 3, ch. 3, to which the counsel for the State has referred us, does not remove the difficulty, because the terms there used are "free negro, free mulatto, or free person of mixed blood," with a similar definition to that given in the section of the act above specified. Free persons of color may be, then, for all we can see, persons colored by Indian blood, or persons descended from negro ancestors beyond the fourth degree. The indictment then, in the present case, may embrace a person who is not a free negro within the meaning of the act, and for that reason, it cannot be sustained.

PER CURIAM, Judgment arrested.