
    WINTER AND SCISSON vs. THE STATE.
    1. Iu a criminal prosecution it is error for the eourt to charge the jury, that if the proof left the question of the guilt or innocence of the accused in equipoise, they could not, on that account alone, acquit.
    2. To -warrant a conviction on an indictment for feloniously aiding slaves to escape from the service of their master, the State must prove that the defendant aided the slaves to escape, and that they were the slaves of the person whose property they are averred to be in the indictment.
    Error to the Circuit Court of Eayette.
    Tried before the Hon. Wm. R. Smith.
    Wl. S. EARNEST, for plaintiffs in error.
    The declarations of a party in possession are competnet to show in what way he holds said property, and as against his interest are conclusive. The evidence here shown, in an action for tbe freedom of tbe boys against intestate, would clearly establish tbeir freedom. Tbe prosecution stands precisely in tbe same attitude as intestate would. 4 A. R., 40; 8 ib., 658; P. Ev., 592 to 601.
    Tbe fact that Jones carried one of tbe boys to a free State was conclusive as to tbe freedom of bim, and tbe court should so have charged.
    Tbe court erred, in charging tbe jury that if they believed tbe boys were mulattoes, that that fixed tbe presumption of slavery. Scott v. Williams, 1 North Carolina, 376; see Laws on Slavery by Wheeler, 406; tbe same doctrine is held in Louisiana;
    In refusing to give tbe charge that tbe presumption of color was rebutted and destroyed by tbe declarations of Jones that they were free and born of a free woman, and bis treating them as free and never having exercised acts of ownership over them for fifteen years;
    In refusing to charge tbe jury that if they bad a reasonable doubt of tbe slavery of tbe boys, that they must acquit. Tbe slavery of tbe boys is tbe very gist of tbe prosecution. If they were not slaves, tbe defendants did nothing wrong.
    The administrator has no right to tbe boys except tbe right of tbe intestate, and if Jones never bad possession of them as slaves, and tbe administrator after bis death never bad possession of them as property, tbe court erred in refusing to give tbe jury tbe charge, if they believe tbe above facts that they must acquit tbe prisoners.
    To sustain this action requires tbe same proof that would be necessary to sustain an indictment for larceny. Hence tbe owner must be correctly stated, and tbe proof must sustain tbe charge. Hence tbe court erred in refusing to give tbe last charge asked.
    M. A. BALDWIN, Attorney General, for tbe State.
    1. Was tbe charge of tbe court that “ mulatto was a presumption of slavery ” correct ?
    Mulatto is an equal admixture of tbe African and white race. State v. Thurman, 18 A. R., 276.
    The only authority I Rave been able to find against tbe charge of tbe court is a decision from North Carolina, 2 Hayw. 170, and it is based upon the supposition, that when tbe descent of a mulatto cannot be proved, the chance of descent from a white mother is equal to that of his having descended from a negro mother.
    Now if such was the fact, that mulattoes are descended as often from white mothers as from negro ones, then there might be something in the reason assigned. As a general rule, they are always descendants of negro mothers, and the cases of descents of mulattoes from white mothers are merely exceptions to the general rule.
    In Virginia and Kentucky, it has been decided that a black or mulatto complexion is prima facie evidence that the person of such color is a slave. 3 Dana 385.
    2. The charge asked, that the declarations of Jones that they were free, and born of free women, &c., was sufficient to destroy the presumption of slavery arising from color, was very properly refused by the court.
    It is not the province of the court to charge on the sufficiency of testimony, 4 Por. 321; and besides, the court' is asked to charge the jury, that if Jones said they were free merely, then they must find it, without regard to their belief whether it was so or not.
    The fact that Jones treated them as his children was no evidence of freedom.
    3. The declaration of Jones was only admissible as to pedigree.
    It is a general rule that hearsay evidence is never admissible, except in cases of pedigree, prescription, custom, &c. The declarations of Jones were admissible to prove who was the mother of the boys, but not to prove whether she was free or not. The fact whether their mother was free or not was -a specific fact, and susceptible of proof. 1 Wheat. 6; 7 Cranch 291 4 ; Rand. 617.
    Were the declarations admissible, as being made by a party in possession, and against his interest? Neither Jones, nor his representative, was a party to the suit. Such declarations can only be given in evidence in a case where the declarant is a party or privy.
    4. Upon the point of the doubt as to the slavery as charged by the court; see 2 Grattan 575, 8 Yerger 233.
   LIGON, J.

The plaintiffs in error were indicted in the Circuit Court of Marion for feloniously aiding two slaves, Henry and George, to escape from their master’s service. The State proved that Henry and George were mulattoes, that they had lived with one Jones for several years, when Jones died, and the prosecutor, Ship, became his administrator, but did hot include in his inventory the boys Henry and George. The plaintiffs in error then introduced proof of facts, tending strongly to show that Henry and George were not slaves, but free persons of coloi\ On this proof the court charged the jury, among other things, that, “If the presumption of slavery was raised, and fixed by color, the defendants must rebut that presumption by proving clearly that the boys were free; and if the matter as to the question of freedom or slavery was left in equipoise, they could not on that account alone acquit.” To this ruling of the court the plaintiffs in error excepted. Several other exceptions were taken to the ruling of the court below, which it is not necessary for us to note.

No rule is better settled than that which requires a plaintiff whether in a civil action or criminal prosecution, to prove the affirmative of the issue, before the defendant can be called on to exempt himself from the charge: in the former by a preponderance of proof, and in the latter beyond all reasonable doubt. It is also well settled that if, upon the whole proof, the charge is not made out beyond a reasonable doubt, the defendant must prevail; and if from the proof, the fact of guilt or innocence is left in equipoise, the jury should acquit. These principles are so well settled and established, that no citation of authority is necessary to sustain them.

• To make out the charge against the plaintiffs in error, it was necessary that the State should have proved that .the prisoners aided the boys Henry and George to escape, and that they were the slaves of the person whose property they are averred to be in the indictment. If it fail to establish either of these points beyond a reasonable doubt, or if, upon the whole proof, a doubt existed as to either, the prisoners, for this cause alone, should have been acquitted.

The Circuit Court having ruled to the contrary, the judgment must be reversed, and. the cause remanded.  