Opinion
(December Term, 1830.)
1. On an indictment against a slave for a capital offence the master cannot be compelled to testify.
2. If the master waives his privilege, has not the slave a right to object to evidence of confessions made to the master? Quaere?
The prisoner was indicted for the murder of her own child, and was tried before STRANGE, J.
Nash, for the prisoner.
Attorney-General, for the State.
FROM ORANGE.
On the trial, the master was offered by the prosecution to prove the confession of the prisoner. This was objected to by the master and by the prisoner; but the objection was overruled, and the witness examined.
The prisoner was convicted and appealed to this Court.
I do not know that the question made in this case has ever arisen before in this State. Nor have I been able to find a decision of it in any of our sister States. It must be decided, therefore, on general principles.
It is a fundamental rule of evidence at common law that a party to a suit, or one directly interested in the result, is not competent to testify on the side of his interest, nor can he be compelled to testify against it. This rule less frequently applies to public prosecutions than to civil actions, because it cannot often happen that private rights are directly involved, or can be consequently affected by verdicts or indictments. But when they are, the rule prevails in one case as (544) well as the other, subject to a few certain exceptions of necessity or statute provision; as in the cases of violence on the wife, or of a witness who is entitled to a reward, on a conviction of the offender upon his testimony. But in other instances, there is no distinction between the effect of a direct interest in criminal or civil cases. A wife cannot testify for one who is co-defendant with her husband upon an indictment for a riot or conspiracy. A prosecutor, or his wife, cannot give evidence in an indictment for forcible entry, under the statutes of Henry and James. One charged as accessory, cannot be a witness for the principal; and other like cases. This has never been carried so far as to embrace heirs apparent, or in tail, or remainder-men, or masters of apprentices. In the former cases, the interest is too uncertain and remote; in the latter, there is no legal interest, because there is no property. But in the case of master and slave, the interest is direct and immediate. The whole property in the slave is in jeopardy, and the master is liable for the costs in case of a conviction. He is not, it is true, party to the record in the sense of reversing the judgment for any irregularity in giving him notice, which is a collateral matter within the discretion of the Court, as to the time and mode of proceeding. But his interests are essentially at stake, as much as the life of the slave is. The rule of exclusion or protection, on the score of interest, must apply in all cases alike, because it is drawn from the known general frailty of our species. The evidence of an interested witness is rejected, because we cannot have confidence that men in general in that state will tell the truth and the whole truth. The temptation is too strong for men to be exposed to it, and the danger of a jury being misled is too great. This applies equally to all cases. I think therefore, that a master cannot be a witness for his slave. It follows that he ought not to be forced on the other side. (545)
But this suggests another difficulty. The privilege not to testify, upon the ground of interest, is that of the master, and not of the slave. It may be consequently waived by the former. He may himself prosecute and give evidence against his slave. And since that is certain, I have entertained the most serious scruples against interfering with this conviction. It cannot be presumed that the master would falsely and corruptly destroy his own property. His evidence on the side of his interest may be suspected; but that against it cannot be supposed to be the stronger than the truth would justify. If so, the prisoner can have no cause to complain. And could I separate her rights from those of the witness, I would do so, and let the verdict stand. But they are so connected that justice cannot be done to the master without giving the slave the benefit of it. We cannot restore him his property, without yielding her another trial for her life; nor reverse the judgment for the costs, without reversing it altogether. I therefore conclude, with much hesitation, that as the master did object to be sworn, there must be a new trial.
When I speak of the power of the master to waive his privilege and give testimony, I would not be understood as putting the slave's life in the master's hands and resting it on his mercy. I allude to testimony, to facts within his knowledge. When he is called to confessions, a different state of the case may arise, in which the privilege will be that of the prisoner. The confessions may have been made in reference to defense, and as instructions for conducting it; or being to the master, may or may not be of that voluntary character which the law, not less in wisdom than humanity, requires. Upon those points not the slightest intimation of opinion is now intended; for there is not a little difficulty in them, and this case does not require a decision upon them. The (546) exception of the prisoner does not present an objection to the evidence upon either of these grounds; and therefore this Court must take it that none existed in point of fact; that the confessions were made freely, and not with a view to defense.
The question submitted to the Court is one of a complex nature. The rights of the State, of the master, and of the slave, are involved in it. If the offense charged in the indictment has been committed, the State is entitled to redress by the legal conviction and punishment of the slave. In such case, the master must submit to the loss of the slave, and the slave must submit to her fate. But it is necessary to enquire whether the rights of either have been violated.
First, with respect to the rights of the master. It is a rule of evidence that a party to a suit cannot be admitted or compelled to give evidence in it, because he is directly interested in the issue of it. The trial throws directly upon him a loss or a benefit. He is therefore, on the score of interest, altogether excluded from giving evidence. It may be taken in the present case that the master is not a party in form to the proceeding. But he is substantially so. He has as great an interest in the issue as if it was made up in an action of detinue to which he was a party. The conviction of the slave is a judgment against him to the amount of her value. In addition to this, he is made liable by the act of 1793 (Rev., ch. 381), for the costs of the prosecution; provided the slave, if a free person, would be liable for them. And there is no doubt that she would be liable upon conviction. I therefore think that the master was so much interested in the case that he ought not to have been examined as a witness when objected to by himself. The objection, however, is personal to the master. It cannot be taken by the slave. As to her, the evidence was legal. But to rectify the error as to the master, a new trial must be awarded. As to the rights of the slave, were the master to forego his interest and voluntarily (547) give evidence against her, I am inclined to think that she might legally object to his giving in evidence any of her confessions made to him, because by the act of 1793 (Rev., ch. 381), he is authorized to defend her; and because she is his slave, and by various means, against which slavery could make but little resistance, he might exact from her any confessions he pleased. But upon this part of the case I give no opinion.