Opinion
November 21, 1797.
Indictment for a rape, on Elizabeth Cliften on June 12 in N. W. F. Hundred.
Mr. Wilson, attorney for prisoner, moved that the Court allow the prisoner to challenge twenty as in other capital cases, if the Act passed in 1789 [ 2 Del. Cas. Laws 942] would by construction admit of it.
The Court were of opinion the law giving them the privilege of trial by indictment and jury before the Sessions, in same manner as was usual in said court before the passing of said act, would not admit of such construction.
Mr. Ridgely, Attorney General. 1 Hawk.P.C. 169. Rape is an offense against a woman by having carnal knowledge of her against her will.
Elizabeth Cliften, sworn. George came to the door, I asked who was there, he said Andrew Tull told him to come and get shoes half-soled. I let him in, he closed me and threw me across the bed. I raised him up and he threw me on the floor and put a handkerchief in my mouth. I cried out, he hurt and bruised me, and committed the rape and did emit or spend in my body. The prisoner at the bar is the very man. He went away, and soon after I went to Mr. Jackson's and told him what had happened. It was a light star night, early in the evening. I had been in bed. (He never attempted the like before.) I got up and put my petticoat on, and let him in, was light enough to see about the house.
Cross-examined. I expected it was him because he stuttered very bad, Jackson said maybe it was Clarkson's Dorse, I said maybe so, I went home with Tull, next day went to Tenant's. Said there it was George. The window had three lights besides one wooden. He had shoes on, it was just before harvest, was two children in bed with me and two by themselves. When I was thrown on the bed, I waked the oldest, who was nine years old, and she hollered, was about dark when I went to bed, had not been there half an hour. I was never married, have had one child. I resisted I believe five minutes before he put the handkerchief in my mouth, expect it was a handkerchief. Tull was at work at Obear's that day, did not always come home at night. George had hat on, I scratched him on his lip and on his nose. Jackson sent two Negroes, they did not get there until George went away. Said, "Never mind," when he was stuttering. Jackson has a Negro George, he was not one that came to me. Tull came home more nights than he stayed abroad, George was never there in his absence. I said if ever I see him I should know him. Bloody water ran out of the scratch next day at Tenant's, I did not ask his name before I opened the door. Said nothing but kept stuttering. Thought it was him.
[Jackson.] About half an hour in the night I heard an uncommon screaming and noise. I told my wife to come and listen. She had gone to bed, did not come. I said I would go see etc., but she told me to sent two of the Negroes. I did send Robert and Harry. After awhile it abated, some time after heard crying and talking. After that heard something like nailing the door, then heard this E. C. coming, crying, and saying it was George. I asked what's the matter, etc.; she said a Negro had been there and choked and ravished her, said he was a long slim Negro, with vest on with white backs and stuttered. She had scratched and tried to bite him. She could not say she knew him, but, if she ever saw him, could swear P. B. to him. I told her I expected it was Dorse. She said perhaps it might be, but he could not have stuttered so. Andrew Tull came, loaded two guns and went to Nathaniel Horsey's. We three went down to James Smith's. Was there told how many, and none were missing, were then confident the person had not crossed the river. Then came to Tull's bars, the moon was up and we discovered a large shoe track. We gave over hunting, and Tull went home with me, and soon after Tull, this woman, and children went home again. Early in morning I went to mouth of my lane. There found this track had gone to Andrew Tull's near the window of the house. I followed through my farm and Mr. Obear's: until came to the county road, then met Obear, told him what had happened, we proceeded towards Tenant's to a pair of bars where John Handy lived. Obear left me. I followed the track until it came to Tenant's peach orchard. I then saw George mauling or cutting at corner of garden. He saw me and dropped his maul, etc. and kept viewing me, said his master was at home. I went on but still eyed George; he did not leave off viewing me until I went in the house. I then informed Tenant what happened, and that his man was suspected. He said he did not believe he had been off his plantation. Said he had not a pair of shoes in the world. George's mother passed, asked her if he had a pair of shoes, she said yes, a new pair. George was called and brought his shoes. They agreed with the size of the track. I then discovered one scratch under, and one by the side of his nose, asked him how it come scratched, said it was done at play, by a little negro girl of his master's. Told him to pull his handkerchief out, he handed to me. I discovered wet places on it, (and showed it to Solomon Turpin). Obear came and we four went out. George put on his shoes and walked with us. Obear took hold his ankle and wanted him to lift his foot up, but George twice lifted his heal up and pushed his toes forward. George had on a jacket with white backs, striped trousers. I saw a stain or mark on the flap as large as the palm of my hand. When E. C. first came to my house, she seemed in great distress. About a quarter of mile from Tull's to my house and one mile to Tenant's. Was a clear night early in June. George stutters, was in the habit of passing by Tull's going to fish. Tull follows shoemaking at times.
Cross-examined. My house is in the direction between Tull's and Tenant's. Do not know anything against George's character except he appears bold. The shoes appeared to be dusty, I believe them to be the same shoes that made the track, wear them who will. Dorse is a tall slim Negro. I saw E. C. and George face to face at Tenant's. She said he was the one. He denied it and began to stutter.
Andrew Tull. I was sent for to Obear's informed of what happened. We took guns and went to look. Returned to the bars, saw a track, and took her and my children home. Soon after heard her say it was George. I was engaged in a crop at Obear's, went home twice or three times a week. My wife died July 11, 1796. E. C. came the 18th of same month. She had lived there three or four times before my wife died. She described him and what happened, (as she has told herself) that same night. She had a bastard, it was white, and died at my house.
Cross-examined. Never knew George guilty of anything criminal before this, she was the first that thought it was him. It happened on Monday night. She went to Mr. Laws by herself, about nine miles.
Nelly Brown. I see wounds etc. on E. C. back, legs, and under her chin. She once lived [with] me, know nothing against her character but her having a bastard, which was three years ago, I think.
Jane Hearn. E. Cliften had a child; it was white. I was the midwife.
Solomon Turpin. I was at Mr. Tenant's. Jackson and Obear came there. Was examined by Jackson, he denied it, I thought George discovered guilt, I saw Jackson spread the handkerchief. George took it out of his pocket, do not know if it was stained, do not recollect whether George took my horse, or was there at all that night. We went to bed pretty late. I rather think I went to bed before the ladies. Tenant told me the Negroes would be in presently and take my horse. Jackson seemed the most active in examining the Negro next morning. I live in Kent County.
John Neal. The night this happened I was going to my place near my fence. Tenant's and my people met. A girl of mine thirteen years old worked out with my people. George was there just after sundown, appeared to be going home.
M. Peery for the prisoner. There is no positive proof that George was the criminal. Violent presumption would convict him, but if we can prove he was not there, but at home, you may acquit. The proof we shall now produce.
William Simpson, for the prisoner. Seventeen years of age. We were out at work in Mr. Tenant's field, came in about dusk. We went to the coop for a chicken cock, then to the kitchen, to playing Dame the button until after supper. I was about a quarter of an hour eating supper, came out, George was there still, he went to the quarter after a piece of bread, came back and ate it. Then went to play until ten o'clock. I heard the clock strike. I left George on his plank to go to sleep. One Turpin was there. George had no shoes on that day; Sunday he had, and was from home. He bought the cock of Brown's Harry, and the way of the track was through the orchard. Next morning George was laying on the plank where I left him. He went out to work again in the out field. I was not at home when Mr. Jackson came. George stayed to take the leather out.
Cross-examined. Harry was at Mr. Brown's. I went with George and came back as far as the place, then George came home. I ate dinner at the out place. George ate after he got home. I saw Mr. Turpin when he rode up. George was there about the house, I do not know who took him away. George went down to the stable and I also. George came out before breakfast, we were in the orchard when Turpin rode up.
Betsey Merril. George came in at dusk to the kitchen. I was getting supper, he went and got wood. I put the supper on the table about eight o'clock. He was turning the button for a child after supper. I returned, he was still playing, etc., as I left him. I have lived at Tenant's ten years. George bears a good character. I saw no scratches on George's face.
Miss Mary Tenant. George came in about dusk, he was there till supper, and after supper I went out, he was still there laying on his plank. I do not think George could have been absent half an hour. I did not go out again until bedtime. I did see a small scratch on his lip or cheek.
James Tenant. One morning before breakfast I observed Jackson taking a handkerchief out of George's pocket, and accused him of ravishing this E. C. George declared he was innocent. Obear asked E. Cliften if she believed George to be the person. She said she did but was not certain. I did hear Mr. Tenant order George to put up Mr. Turpin's horse. I saw no scratch on his face.
John Tenant, offered as a witness, objected to by the Attorney General [on the ground that] under the old Act he has the right to receive one-third, by our late Act he cannot recover one farthing. Hawk.P.C. 610. An uncontested rule a person interested in the event of a cause or bail cannot be a witness. No case of necessity; there have been four witnesses examined to prove the improbability of the Negro being absent.
Vining. Tri. per Pais 369. 3 Term 27. Interested witness admitted ex necessitate rei. So in a civil case an interested witness by release he may be admitted. How much more then in a criminal.
Peery. In criminal cases the party interested is admitted to convict. The reason is much stronger to acquit. Tri. per Pais 308, masters, servants, and apprentices shall be admitted; 309, member of corporation admitted though one moiety of the fine was due him; 310, inhabitants of Greenwich etc. admitted.
Ridgely. The rule of law or principle of law with respect to interest is the same in criminal and civil cases.
The Court considered this a new case, and that the cases to be met with in the books were not applicable, that the master of a slave should not be excluded on account of the interest he has in him to give evidence in a trial for a capital offence, etc., therefore direct the witness to be sworn.
John Tenant, sworn. On Monday the twelfth of June George worked at my out place; in the evening he came home and the rest of the people with him. I ordered him to go and feed Turpin's horse. I asked him when he returned if he had done it. He answered, yes. I was in the porch, saw George go into the kitchen, we went in and set down at eight o'clock precisely and went to bed at ten. My wife was from home that night. I went into the kitchen and there saw George apparently asleep; when Jackson came I called George. He questioned him and appeared keen. I sent George out on Monday and until Wednesday he continued to work as usual.
James Smith. Riest Jackson etc. came to my house while the others were sent down to see if the canoes were gone. Jackson told me E. Cliften had been ravished about a half an hour before by some tall Negro and a little stooping in his shoulders, and he thought, from what he understood from her, it was Clarkson's Dorse. When they came to my house, I could not have told who they were nor the color of their clothes. I think my house more light than Tull's. The moon was not up then.
Nathaniel Horsey. Jackson came and called me out. We went to Tull's house; told me he suspected it was Dorse. We perceived a track near Tull's bars. He said it was not Dorse for he wore a sharp shoe, we went on to Captain Smith's to see how many canoes. None were missing, the moon was rising as we [went] along towards Smith's.
Joshua Obear, Jr. About a week or fortnight after, E. C. said she would not minded so much, and not forced her, took it willingly.
Sally Jackson. When she came to my father's he mentioned Dorse. She said she expected it was him. When the Negro came to the door he did not stutter, but talked fast, if she ever saw him again she could swear to him. She said something about George as she came up the lane. I was in the door, and heard a noise at Tull's. My father first mentioned Dorse.
Polly Rust. E. Cliften when she came to Jackson's said she did not know who it was, expected it was Dorse.
John Leverton. I took George about two days after the act, he did not attempt to escape.
Joshua Obear. The morning after this, I met Jackson he had a stick with the measure of a shoe track. I left him and after went to Tenant's, they were all there. Jackson took out the handkerchief as we were going home. He told me he saw nothing on it. We took George out and put his foot in one of the marks. It made a print rather bigger, second time raised his heel up, did not discover any stain on his trousers. E. Cliften was about three months in the neighborhood before this, was considered an ordinary woman.
Curtis Jacobs. Obear told me Tenant asked the girl is this the fellow. She said she would swear P. B. he was the one, and she said the left side of his cheek was scratched. Obear said it was so, and that B. M. told the negro girl to say she did it. Obear said when they took George out to measure shoe track he would not measure fair, etc.
By the Almanac: sun set 36 minutes before eight; moon rose 54 after nine.
Ridgely. The counsel on the opposite side do not seem to deny but that the rape was actually committed. The question then for you, Is George the man that committed it?
Wilson for prisoner. I believe the crime was committed but it was not committed by George, if the evidence leaves a doubt on your mind of the guilt of the accused you ought not to find him guilty.
Vining for prisoner. Blackstone says this is a fact hard to prove, but still harder to disprove.
Peery. Where there is a conviction not from positive proof but violent presumption, there must be a well concerted train of circumstances to make it appear, and there is no other probable way to account for the circumstances. She did not know him at the time and could have no better knowledge after. Innocence appears in the whole conduct of the prisoner and is a strong circumstance in his favor.
Ridgely in conclusion. The felony ought to be proved before any person can be convicted. It has been fully proved in this case. The only question now, Is this man guilty?
Gentlemen, in this case which has been fully argued and the evidence fully before you, the point on which this cause must turn is whether the identity of the person is proved. There have been twenty witnesses examined in this cause, in some measure contradictory; you are to consider and weigh the evidence according to the credit you think it ought to have. In this case where the life of a man is depending, you are to be fully satisfied in your minds and consciences before you can convict, but, if you have a doubt remaining from the circumstances of his guilt, you will acquit.
Verdict not guilty.