Opinion
(December Term, 1864.)
1. It is not a ground for arresting judgment that the two offenses of permitting a slave to go at large as a free person, and of permitting him to keep house as a free person, are joined in the same count of an indictment. Such objection ought to be taken upon a motion to quash the indictment, and not upon a motion in arrest of judgment.
2. If a slave, living in a house to himself, keeps a boarding-house for his own livelihood, and the master, knowing it, exercises no control over him or his business, this is an offense within chapter 107, sec. 29, of the Revised Code.
INDICTMENT against the defendant for permitting his slave to go at large, as a free person, and for permitting him to keep house as a free person, exercising his own discretion in the employment of his time. Both offenses were charged in one count. The trial was before Heath. J., at MECKLENBURG Fall Term, 1864.
It was in evidence that the defendant was the owner of the slave, who is 65 or 70 years old; that she lived on a lot in the town of Charlotte, 200 yards from where the defendant lived, who was frequently on the lot where she lived, he having a tanyard on the lot, and being engaged in working at that business; that she kept a boarding-house for soldiers and other white persons, and was frequently seen in the market and in the stores, buying supplies for her household; that when the defendant was remonstrated with, by a policeman of the town, for permitting her to go at large and live in this manner, he said that she was old and unable to work, and was of little value to him while he had (449) her, and that he permitted her to work her own way.
The judge charged the jury that if they believed, from the evidence, that the defendant knowingly permitted the slave to go at large as a free person, exercising her own discretion in the employment of her time, or if he knowingly permitted her to keep house to herself as a free person, exercising her own discretion in the employment of her time, he was guilty; but if the slave lived or kept house in the house mentioned, for the purpose of attending to the business of her master, he was not guilty.
The jury found the defendant guilty, and from the judgment on the verdict the defendant appealed.
Attorney-General for the State.
No counsel for defendant.
We are unable to discover any error committed by the judge in the trial of the case in the court below. The facts stated by the witnesses, if believed, certainly brought the case within the prohibition of the act under which he is indicted.
The testimony was fairly submitted to the jury in the charge of the court, and with the result the defendant must be content. S. v. Duckworth, ante, 240.
There is no ground upon which the motion to arrest the judgment can be sustained. The offenses of the owner of a slave, permitting him or her to go at large as a free person, and to keep house as a free person, are of a cognate character, and there can be no more objection to their being included in the same count of an indictment than there is for joining in the same count the charge of an affray and that of (450) a mutual assault and battery.
At all events, the objection ought to have been taken upon a motion to quash the indictment, and cannot be made available upon a motion in arrest of judgment. See Arch., Cr. Pl., 53; S. v. Allen, 11 N.C. 356.
PER CURIAM. No error.
Cited: S. v. Tytus, 98 N.C. 707; S. v. Christmas, 101 N.C. 755.