Opinion
(June Term, 1864.)
1. An indictment upon section 29, ch. 107, Rev. Code, is sufficient if it avers that the defendant did "permit the said slave, Peggy, to keep house to herself as a free person"; and, in the second count, did "connive at said negro slave keeping house to herself as a free person."
2. A., being the owner of a female slave, left the county several years before the finding of the indictment. At the time of going away he conveyed the house and lot, in which the slave lived, to the defendant, and gave him also a note for $50 in consideration that the defendant would support the slave and her husband, both being old, for the rest of their lives. This is a sale of the slave from A. to the defendant.
INDICTMENT tried before Howard, J., at BURKE Fall Term, 1863. The indictment was as follows:
"The jurors for the State, on their oath, present that Alexander Duckworth, etc., being the owner of a certain female negro slave, named Peggy, on the, etc., unlawfully did permit said negro slave, Peggy, (241) to keep house to herself as a free person, contrary to the form, etc.
"And the jurors, etc., further present, that the said A. D., being the owner, etc., did unlawfully connive at said negro slave, Peggy, keeping house to herself as a free person, etc."
The witnesses testified that the slave was the property of one Smyth, who moved from Burke County several years ago; that she was reputed since that time to be the property of the defendant; that when Smyth left the county, he conveyed the house and lot in which the slave lived to the defendant, and gave him a note for $50, in consideration that he would take the slave and her husband, both old negroes, and take care of them the rest of their lives; that for a year or two after Smyth left, the defendant did furnish them with wood, provisions, etc., but for several years last past he had done nothing for the woman, the man being dead, and she had to support herself as she could, by begging and what little work she could do; and that the defendant has not of late exercised any control or supervision over her, but has permitted her to act entirely as a free woman.
The court charged the jury that the possession of the slave having been passed from Smyth to the defendant, the question was whether the contract between Smyth and the defendant was, at common law, a contract of bailment, or sale, and that this was a question of construction for the court; that, as the interest conveyed was the whole interest in the slave, and the obligation of the defendant the full duty of master or owner, it amounted to a sale, and the title passed to the defendant. The defendant excepted to the instructions given by the court to the jury. Verdict for the State, and judgment accordingly.
(242) Winston, Sr., for the plaintiff.
No counsel for defendant.
The court below put, as we think, the proper construction upon the transaction between Smyth and the defendant. It passed the ownership of the slave to the defendant for the reasons very clearly given by the court, and we deem it unnecessary to add more.
Looking into the record, we find the indictment has not employed all the phrases used in the statute for the description of the offense. The statute provides that "no slave shall go at large, as a freeman, exercising his own discretion in the employment of his time; nor shall any slave keep house to him or herself as a free person, exercising like discretion in the employment of his or her time; and in case the owner of the slave consent to the same, or connive thereat, he shall be deemed guilty of a misdemeanor."
The indictment charges that defendant, being the owner of the slave, "did permit her to keep house to herself as a free person," omitting the words, "exercising her discretion in the employment of her time."
We do not perceive that the words omitted would give any other signification to the words used than they express standing alone. To keep house to oneself as a free person involves with sufficient precision and certainty the exercise of one's discretion in the employment of his time, and no additional words would seem to be necessary to convey that idea; although it is best, and we therefore recommend the use of the terms and all the terms deemed proper by the Legislature for defining the offense; yet it is not necessary, provided the sense be perfectly preserved without.
For like reasons we are of opinion that the substitution of the (243) word "permit" for the word "consent" does not vitiate the indictment.
No error.
Cited: S. v. Brown, post, 449.