
    The State v. Francis Anone.
    It is too late, in tlie Appeal Court, to object to the commission of the Judge; it oug'lit to have been done at the trial, 
    
    It is immaterial whether the property sold by a slaye, contrary to the Act of 1817, to preyent illicit trading with negro slaves, be the property of the slaye, of bis master, or of any other person.
    The owner or master, sending a slave with goods, on purpose to entrap the person who might trade for them with the slave, and standing by, to see the act of trading, or otherwise to detect the illegal traffic, and not forbidding or sanctioning the transaction, does not thereby legalize such trading. 
    
    Where defendant had been in the habit of trading with slaves, without a permit, and had authorized his clerks so to trade, and knew that his negro slave (whom he also kept as a clerk in his store) had traded in the same manner, in his shop, to which he made no objection, it is sufficient evidence to presume, that he was so authorized by his master, as to make the latter liable for the penalty. 
    
    Tried before William Ellison, Esq., at Coosawhatcliie, sitting for Mr. Justice Grimke.
    *This was an indictment against the defendant, for trading with a slave i-.j™ without a ticket, under the Act of December, 1817, which forbids all L trading with slaves without permits or tickets.
    It appeared that the defendant was absent from his store at the time that the fact occurred; and that this slave, named Polydore, who had been long employed in the store, had received corn from a negro, without a ticket, and had given him some articles out of the store in return. The witness who proved these facts saw what had passed, having’ given the com to the former slave, and sent Mm to the store for the purpose of detecting defendant in trading' illegally. This witness was the overseer of the master of the slave that carried the corn ; and did not interfere or forbid the trade. Polydore had been in the habit of buying and selling for defendant, for a considerable time before ; and there was proof that he had before traded with slaves without tickets. It also appeared that the defendant had several different times employed a white clerk. Defendant had said to the white clerk, that a ticket was of no consequence ; but the clerk knew nothing of any express directions to Polydore upon that subject. This clerk went away at the end of February, and the plan to entrap Polydore was executed in March of the same year.
    For defendant, it was contended that the evidence was not sufficient to warrant the jury in finding the defendant guilty.
    But the judge charged that there was sufficient evidence to justify the inference, that Anone’had instructed Polydore to trade with negroes without tickets.
    The jury found him guilty.
    A new trial was therefore moved for, on the grounds : That the verdict was contrary to law and evidence ; inasmuch as there was no proof of instructions to Polydore to deal with negroes ^without tickets ; and because a princi- r^gg pal is not liable, criminally, for the acts of his agent. L
    The appellant instructed his counsel to request the attention of the Court to the commission of the gentleman who presided as judge ; and that he might be allowed the benefit of this exception to the jurisdiction of the Court, although the same was not taken at the trial.
    There was another ground argued in this case, to wit, that inasmuch as the corn -was delivered to the slave, expressly for the purpose of detecting the defendant'in trading with him, the corn became the property of the slave, and the overseer standing by and not forbidding it, the trading was sanctioned by him, and became legitimate.
    
      
      
        Vide Wood’s Civil Law, 334. R. Josey v. Wilm. & M. R. R. 11 Rich. 2d trial.
    
    
      
       The State v. Stroud.
      
      The defendant had been convicted of trading with a negro under the Act of Assembly, 1796; 2 Brev. Dig. 248-9. His counsel now moved for a new trial on the ground that the negro had been sent by his master to trade with him; it was, therefore, with the owner’s consent, and not against the Act, &c.
    
    
      
       The State v. Boegmait.
      
        In this case, it was determined that, on an indictment for retailing spirituous liquors, without a license, it must be proved that the defendant sold the liquor in person, or authorized the sale of it.
      
      Queery. Is a single act of vending sufficient proof of retailing spirituous liquors, without a license ?
      
      This was an indictment, tried at the City Court of Charleston, May Term, 1819.
      In this case there was an indictment against the defendant for retailing spirituous liquors, without a license, contrary to the Act of Assembly. On the part of the State, it was proved that the witness purchased a gill of gin for a negro, of a person who appeared as clerk, in a shop, over the door of which there was not a sign with the defendant’s name on it. The witness also proved that no other person was present beside himself, the clerk, and the negro ; and also that the shop was a store for the sale of fish, beef, and other articles, besides liquors. Here the evidence, on the part of the State, closed.
      On the part of the defendant, it was proved by a physician, that the defendant was sick in February, at the time the liquor was bought; confined to his bed, and incapable of attending to his shop. In his defence, the defendant* -Xgg contended that he could not be convicted, because, by the indictment, he L was charged with a crime; and that it ought to be proved that he, in person, sold the liquor, or authorized the sale; whereas, it was proved, that the liquor was sold by another-porson, and in his absence, and when he was incapable of attending to business. He also contended, that he could not be convicted, because the indictment charged that he had not a license, and no proof was offered on the part of the State to show that he had not a license.
      The jury found a verdict of guilty.
      From this decision the defendant appealed, and moved for a new trial, on the grounds:
      1. That it ought to have been proved that the defendant sold the liquor in person, or authorized the sale of it.
      2. That it ought to have been proved that the defendant had not a license to retail liquor.
      The opinion of the Court was delivered by Mr. Justice Richardsos.
      That the principial is not liable, criminally, for the acts of his agent, is a well-settled rule of law. In Fowler v. Williams, Salk, 282, this position is laid down, “That no master is chargeable with the acts of his servants, but when he acts in the execution of the authority given him.” In the well-considered case of Maner v. Cricket, 1 East, 106, in which the former cases were ably reviewed, the Court came to tins conclusion, that a master is not liable for the wilful acts of his servant, done without his assent. In the cases of Snee v. Trice, and of the State v. Dawson, 2 Bay, 245 and 360, this rule is fully recognized in Carolina. Any other rule would make a servant the dispenser of the fame and fortune of his master. And however demoralizing may be the tendency of the practice of habitual retailing, especially where there are slaves, yet all offenders have equally a claim and right to the rules of criminal law. All are presumed innocent till guilt appears from testimony expounded through those rules. Unless guilt be discernible through their medium, acquittal follows as a claim of right, not of grace.
      But it must not be understood that the rule laid down as primarily governing the decision in this case, requires positive proof. It is considered that circumstantial evidence, for instance, the character or system of doing business, or even the business generally done in the store, former practices or directions to other agents employed, these and the like, would bo.received, from which to infer that the master directed or assented to the criminal act. Of this, we have given an example this term, in the case of the State v. Anone. But the case before us presents simply a criminal act done by the clerk of the defendant m his store, during his absence, and when, too, he was sick. The connection between these two in business does not imply a concert in crimes. The contract between principal and agent is understood to be for legitimate, not criminal objects. If one step aside from the straight path of their legitimate course, does it follow that the other has also gone astray, and that both must be punished ? This would be to presume guilt, instead of innocence. At the same time, it is evident, that wherever the criminal act sprang out of the manner of doing business, as in the present instance, selling by retail, and for the apparent advantage of the principal — when the '^business was selling generally for him, the impression that J he authorized the act becomes strong. Still it is but suspicion; and bare suspicion, however strong its capacity for directing, explaining, and enforcing evidence, positive or circumstantial, yet it cannot, of itself, counterpoise the great principle that presumes innocence. Still less can bare suspicion break the chain of well connected decisions which establish that the principal is not necessarily answerable for the crime of his agent.
      Wherever suspicion arises against one person, merely from his general association with another who has offended, suspicion is rendered harmless by the funda/-mental rule I have noticed. Such suspicion has no more than a capacity for receiving and pointing the testimony. But without testimony, suspicion, however active and quicksighted, is without its essential weapon, and the object of suspicion stands aloof from reach.
      Unless there be this distinction between general suspicion derived from an association innocent in itself, and the conclusions which such an association assists us in drawing from actual evidence, what husband can be safe from the crimes of his wife ? What parent against those of his child, or master free from the wilfulness of his servant ? The natural and civil relations between these parties may beget suspicion against the principal whenever a crime is committed by the inferior. Yet neither the act nor the association, unconnected with other facts, is the smallest proof against the former. If the suspicion arising from the mere relation of the parties could make the act of one proof of the other’s guilt, these necessary connections in civil society must lose their ends and character ; and the rule, that one 'is not liable for the exclusive guilt of the other, would have no meaning. No, this plain principle is intelligible in all these relations, and guards the innocent from the influence of mere suspicion arising from the other’s conduct. A man’s seeing a woman commit a crime oannot implicate him; but if he is her husband, the marital authority may explain that fact, and make his presence evidence of participation in her guilt. In the like manner, a man’s standing by when a lad retails spirituous liquors, is not proof of a man’s guilt; but if he is the lad’s master, his presence may be made proof of his assent to the crime. Thus, then, the private economical relation of husband and wife, master and servant, &c., cannot, of itself, be the least proof against the party absent, but may well be the mean of expounding his own conduct, rendering it intelligible, and connecting him thereby with the act of the party present. But first, his conduct must be proven, or no conclusion against him can follow. If the husband or master, if the parent or principal, invite or countenance the act in any way, his own conduct is a direct fact; and when connected with his authority, which is an explanatory circumstance, may add to suspicion the proof necessary to conviction. But without some act, word or gesture of the principal, what is there but a general, undefined, imperfect notion of guilt, springing from no source but a habit of associating the principal with the acts of the agent, or the vague surmise that the inferior would not have thus acted without the countenance of his superior; or, at most, that when, for the master’s apparent interest, it is presumed, from our general experience, that he assented. But is such reasoning conclusive, and is it derived from any proof ? Or is it not more like that of the mistress for punishing her slave, “sic volo, sic jubeoV This may serve for punishing a *slave, but never for convicting a freeman of a crime. -* No, we cannot be mistaken in such leading principles of law; the difficulty is in the application, and it is a great difficulty. The rules of criminal law are distinct; always equal and comprehensive. They command obedience. Unless we discover guilt through their medium, we can see no guilt punishable here. Unless, indeed, all evidence be strictly controlled by them, we are left at a too variable discretion — left to form rules upon tbe emergency of the day, and fitting to them the crimes of yesterday.' We should, then, punish past crimes by laws which should restrain them only in future; and the too partial feelings of the particular occasion would become the narrow tyrant of the moment.
      Eor my own part, I deem the case before us settled by the adjudications noticed. But as there is a difference of opinion, I have endeavored to place it upon allowed principles also.
      Some of my brethren question much whether a single act of vending would be sufficient proof of retailing illegally.
        
         But my aim has been to show the total absence of all proof indispensable to support a verdict against a principal charged with the act of his agent; and to let the case turn upon principle rather than upon the insufficiency of proof. My position being, that there was no proof from the want of some act of the defendant personally, in order to connect him with the criminal conduct of his clerk.
      The other question made in the case is unnecessary to the decision; and some of us apprehending that it was formerly decided at Columbia, in a case not yet published, I forbear to touch it. But upon the former ground, the motion for a new trial is granted.
      Mr. Justice Johnson concurred.
      Mr. Justice Nott concurred in this opinion, but not in all the reasons therein mentioned.
      Mr. Justice Comook was absent when this case was tried.
      Justices Gantt and Bay dissented.
      
        Gadsden, for the motion; Hayne, Attorney-General, contra.
    
   The opinion of the Court was delivered by

RichaRPSOn, J.

It is a plain misconstruction of the Act of 1817, as well as of the Acts upon the same subject preceding it, to suppose, that to trade with a slave for his own property is not within the penalty of those Acts. The evident'object of it is to prevent any trading whatever with a slave. Eor this purpose, at least, a slave can have no property; and it is believed, that the Act of 1817, will embrace every instance of selling to, buying from, or bartering with, a slave having no license. If frivolous charges should be made, they must be left to the cautious discretion of the prosecuting officer, the good sense of a grand jury, or finally to the governor ; neither of whom, it may be safely concluded, will suffer a merely malicious charge, destitute of merit, to succeed. But the Act in itself, from its fullest expression, the necessity arising out of our local situation, and the consequent obvious policy, is comprehensive, universal, and stern..

As to the other view which may be taken of this ground that the overseer delivered the eoru to the slave, and stood by, not forbidding the trading; it has been long since decided, that the employer’s delivery *of any article to a slave, and afterwards standing by for the pur-*30] pose of detecting an offender, who may trade with the slave, does not legalize the trading. On the contrary, this means of detecting persons who notoriously trade with slaves, is becoming common ; and being prudently practiced, may be rendered very efficacious. It is true, that where the owner or employer stands by, apparently sanctioning the transaction, it is a fair inference that the trading is with him, and not with the slave; as frequently happens, when a carriage stops at a store, and a servant is sent in for some article. But when the owner goes in order to detect, and for that purpose merely eyes the traffic carried^on, giving to the offender no real or apparent intimation of his assent, it has been often decided, that the inference is rebutted by the truth ; and that the policy of the law sanctions a practice so essential to the exposure of skilful traders.

■ As to the request made, that the Court would look into the authority of Mr. Ellison, for holding the Court under a temporary commission,1 will briefly observe, that no such objection having been made at the trial, there is nothing regularly before this Appeal Court, upon that subject. Such a motion, therefore, comes too late, as was also decided in the case of -. Any other decision might destroy the judgment, and other proceedings of entire terms, holden under such commissions. We cannot, then, strain liberality in order to indulge a request fraught with so much evil.

We come now to the only question properly arising out of the facts in the case, to wit: Was Polydore instructed.by the defendant to deal with slaves without permits or tickets ?

This was a matter of inference from the evidence given; and involves the inquiry, perhaps, whether the judge, in no way misled the jury upon points made in his charge. The law so well decided, both in this State [*31 and abroad, that a master is not liable for the acts of his servants, unless done by authority; *and that the principal is not liable for the criminal acts of his mere civil agents, we fully recognize. See Middleton v. Fowler, 1 Salk. 282. M'Manus v. Cricket, 1 East. 106. 2 Roll. Abr. 553. These positions are indeed well settled, in 2 Bay, 345, 360, Snee v. Trice, State v. Dawson. But in the case before us, the sole inquiry is, was Polydore instructed ? The jury have affirmed' that he was instructed to do the criminal act. But it is denied, that their verdict is supported by the evidence. To determine the truth we must turn to the testimony of the witnesses; and as the facts of the‘case are new, (in the Courts I mean,) and may form an important precedent, dependent altogether upon testimony, I will narrate it somewhat more at large than is usual, and precisely as reported to this Court.

Thomas Pulton, after proving the trading, swore, that Polydore was in the constant habit of trading with negroes, without tickets. Aud previous to this transaction, he cautioned the defendant about the conduct of the negro, and advised him to put a white man there. When defendant replied, his lawyer told him his having a negro there would be sufficient. He told defendant, that Polydore did trade with negroes,' without tickets. He thought it was after that time, that defendant put a white man there. The witness gave the corn to the negro to sell, and followed him and saw him sell the corn. g

P. Hanson was clerk for Anone, in 1817, and while he lived there, Polydore assisted him ; and when he was absent, Polydore had the principal management. While witness was sick, Polydore had the whole management. Anone directed the witness to buy all the corn he could, and if the negroes brought ten thousand bushels, to buy it. The witness remonstrated; to which defendant said he was not fit to do business. Polydore was there, and bought corn without tickets. The witness wrote several letters informing defendant that the negroes brought so much corn, that they must have stolen it. Anone came and told witness *to buy all he could get, and made no mention of tickets. He could *- not pretend to say, that Anone told Polydore to buy from negroes without tickets.

Samuel Jones lived with Anone, as clerk, and came away last of February, 1818. When this witness came away, he heard Anone tell Poly-dore to take care of every thing, and to do as well as he could, and all the money he got, to give it to Mrs. Quin. Polydore was as much a clerk as witness was, acting under the witness. Polydore was dealing there under Anone’s directions, and bought of negroes without tickets ; and defendant told witness to buy of negroes, and that it made no difference about a ticket. He never heard him give any directions to Polydore about a ticket. Defendant gave directions to this witness, and he gave directions to Polydore.

The presiding judge charged the jury, that if they believed the witnesses, the defendant’s directions to Jones showed the principle upon which the defendant carried on trade at his store; and would be sufficient to raise a presumption that Polydore acted under defendant’s orders of purchasing from negroes, without tickets ; and if such should be their view of the case, from his testimony, in connection with his evidence of the other witnesses, they were bound to convict the defendant. He added, that it would be difficult to produce positive proof of guilt under this law, when the agent of dishonesty was a negro, who could not be examined.

Grimlce, for the motioD. Petigru, Solicitor, contra.

I conceive that this charge fairly left the inference to the proper tribunal, the jury; and the observation subjoined, was in the true spirit and policy of the act. In my judgment, the moment it was established that defendant carried on a systematic trading with negro slaves, rational suspicion must arise ; but add to this, that he instructed Ms clerks to deal to any amount with slaves, and these instructions given after the honest remonstrance of Mr. Hanson, (in the face too of his suggestions, that *the corn, from the large quantities, must be stolen,) and suspicion •J becomes opinion. But does this testimony stop here ? Ho. Polydore, acting as his clerk, was constantly, says Pulton, in' the habit of trading with negroes without tickets. He informed defendant of Poly-dore’s conduct, and cautioned him upon it. Yet the trade was still carried on ; and from his testimony, to an extent, and with a continued disregard for friendly caution, faithful remonstrance, and the laws of the country, as though he really apprehended that impunity was in proportion ' to the severity of Legislative enactments, and that the sword placed over the head of offenders against these laws had so long moulded in inactivity, as to have changed its temper and lost its edge.

To conclude, I believe I do no more than-express the concurring opinion of the Court, in saying that the same force of direct and circumstantial evidence would warrant the conviction of a master, charged with assassination, through the agency of his slave. Even in such a case, to require direct proof of specific authority to the slave, would go well-nigh to legalize that worst of crimes. Por in slave countries, whenever the crime of assassination prevails, it will be practiced through the means of slaves, as is well attested by historical instances. If, then, to prove this high crime, so perpetrated, we can only look for circumstantial proof, and implied instructions, well might Mr. Ellison observe, that whenever the agent of dishonesty is a slave, we must not look for positive proof of instructions. No, whenever a master makes his slav.e the minister of his crime, we can look for testimony only from his character and conduct, the object in view, the time, the place, and attending circumstances. These sometimes forge the links and clasps of truth ; develope, as in the very case before us, a vicious course, “ nnwhipt of justice strike the offender ^.q.-i *througk his covert conduct, and lay bare his hardihood to the J bone.

The motion for a new trial is unanimously dismissed.

Oolcock, Nora, Johnson, Gantt, and Bay, JJ., concurred. 
      
       1 Bail. 642; 8 Rich. 32.
     
      
       3 McO. 308.
     
      
       1 Brev. 551; 1 Sp. 224.
     
      
       Post. 79.
     
      
       1769, 7 Stat. 199, § 3; 1818, 7 Stat. 121; 1791, 7 Stat. 262, § 4; 1799, 7 Stat. 299, § 38; 3 Brev. R. 500; 2 Tread. 657.
     
      
       See Act of 1834, 6 -Stat. 576, § 3; another Act of 1834, 7 Stat. 468, 3 Hill, 90; 2 Bay, 360.
     
      
       Reported 1 Brev. 551.
     
      
       7 Stat. 434.
      
        
        Sed per Our. tlie defendant did not know that the owner had sent him, and the Act makes it an offence to trade with a negro without a note or ticket in writing.
      
      Motion discharged. MSS. Mr. Justice Non, Columbia, November, 1805.
      See 2 Bail. 573'; Post. 281.
     
      
       Dud. 43; State v. McBride, 4 McC. 332; State v. Steadman, 8 Rich. 313; 1 Rich. 90 ; 2 Hill, 187.
     
      
       Ante, 30.
     