
    The State vs. John Glasgow; Same vs. Same; Same vs. Same.
    The Act of 1831 was intended to prevent the employment of a slave as an agent or clerk, to carry on the business of retailing in the absence of his owner or employer, though for the benefit of such owner or ’ employer; it only reaches those cases where the slave makes the sale and receives the price, as well as delivers the liquor; it does not extend to a case where the slave merely draws it, in the presence, and by the direction, of the master.
    A defendant may be legally convicted of retailing without a license, and of trading with a slave, though both offences arise out of the same act.
    The test by which to determine whether a former conviction is a bar to another prosecution is — Would the evidence necessary to support the second indictment, have been sufficient to procure a legal conviction on the first ?
    BEFORE EARLE, J., AT ABBEVILLE, FALL TERM, 1836.
    There were three separate indictments against the defendant, depending on the same proof. He was indicted for trading with a slave without a permit; secondly, for retailing spirituous liquors without license; and thirdly, for suffering his slaves to be employed in vending spirituous liquors. There was but one instance proved, and that was the selling of half a gallon of whiskey to a negro. This was drawn out of a barrel in the defendant’s own house, by his negro woman Betty, the defendant himself standing by, and part of the price was paid to him at the time, and the balance was to be paid him next day at the mill. The proof consisted wholly of the defendant’s own acknowledgments on the trial of Betty before Justices. He admitted that the whiskey was his, and that he received the money for it; and in answer to an interrogatory put by the Court, whether he disapproved of Betty’s act in drawing the whiskey, he replied, “she has the management of such things about the house.” The transaction took place 23rd November, 1834, on Sunday. He ha'd no license to retail. In January afterwards, he applied for license, to be antedated to the 1st of October preceding, and when this was refused, declined taking it. Eight or ten witnesses proved 'the good character of the defendant, - and several deposed that they had sent negroes there for liquor without an order, and that the defendant refused to furnish it. The cases were all committed to the same jury, with such remarks aá1 were called for in relation to each. As to the retailing, the presiding Judge referred to the State vs. McBride, 4 McCord, 882, and charged according to the view presented in that case, by Mr. Justice Johnson. As to the two first cases for trading with a slave and retailing, he expressed himself in his report of the trial as satisfied with the verdict. In relation to the other case, he stated that he doubted at the time of the trial, and was since ,of opinion, that the conviction was wrong. The provision of the Act.of 1881, is in these words: “no owner of a slave, nor any person having charge of a slave, shall suffer such slave to be employed or concerned in the vending of spirituous liquors.” He thought on a fair construction of the act, regarding the evil and the remedy, that the object of the Legislature was to prevent the employment of slaves as agents or clerks, in the absence of the owner or employer, from carrying on the business of retailing, though for the benefit of the owner or employer, on account of the danger which would result from the promiscuous intercourse among negroes and others, which this practice would .introduce.The Act reached only those cases where slaves not only deliver the liquor, but make the sale and receive the price; where they are employed in vending. He did not think it embraced the case of the defendant, who was himself present, made' the contract, received the price, and merely directed the servant to draw the liquor. He thought he should have directed on this indictment an acquittal; and that a new trial should be granted.
    The defendant appealed, and moved for a new trial in the two last eases, on the grounds,
    1st. Because in the trial for retailing without a license, the proof was confined to a single case of vending, and the evidence negatived the presumption that the defendant had before or since retailed; and proof of a succession or repetition of acts of retailing is necessary to conviction.
    2d. Because in the trial for permitting a slave to be employed in vending, there was‘no proof that a slave had been so employed, except in the one instance, when the defendant was present, and the slave merely drew the spirits by defendant’s order.
    And in bar or for a new trial on the ground,
    3d. That the conviction for retailing and for trading with a slave, are for the same crime or act, and the defendant cannot be punished twice for it.
    
      Burt, for the motion.
    
      Caldwell, solicitor, contra.
   Curia, per Earle, J.

The defendant has been convicted on three separate indictments growing out of the same transaction; viz: 1st. for suffering a slave to be employed in retailing spirits; 2d. for retailing without license; and 3d. for trading with a slave without a permit.

In regard to the first, this Court is of opinion with the Judge below, that on a just interpretation of the Act of 1831, the evidence did not warrant the conviction. . The defendant, who was the owner of the slave, being actually present when the liquor was drawn from the cask and delivered, and having, himself agreed to furnish it, and afterwards receiving the price, it would seem to have been entirely his own act, in which the slave was merely the involuntary instrument; and does not appear to come within the mischiefs of that sort of trading, which the legislature intended to prevent. It is true, the words of the Act are general and comprehensive; “to be employed or concerned in .the vending of spirituous liquors.” Now, in one sense the slave here was concerned, for she was physically employed in drawing the liquor : yet she cannot be said to have been employed as a moral agent in vending, which implies volition, assent, and agency. Such an employment in absence of the master, would be exceedingly mischievous, whether the owner were a licensed retailer or not, whilst the employment of a servant by a licensed retailer, in the mere act of drawing liquor in his -presence, carries with it no more mischief than if he were to draw it himself. On this indictment the conviction is erroneous and a new trial is ordered.

In the second case, for retailing without license, the question which is presented on the first ground has been frequently discussed, and on which it does not seem practicable to lay down any rule that shall restrain the discretion 'of the jury. Retailing does appear to imply a succession of acts continued from day to day. But it would be unsafe to say that the jury should not be allowed to infer the habit from the proof of one act of retailing; looking, as they always do, to the character of the defendant and to the circumstances. If we were to say that one act should not be sufficient to authorize conviction, could we with sense and propriety say that two acts should constitute retailing ? Such proof, would be stronger, to be sure, but even two alone would hardly constitute the habit. On the whole, the Court perceives no good reason for departing from the precedents; and it has been well settled that the jury may convict on proof of one act of retailing, State vs. McBride.

Out of courtesy to the counsel who makes the motion in this case, the Court has allowed the ground to be discussed:, whether the defendant can be legally convicted both of retailing without a license, and of trading with a slave, when both offences arise out of the same -transaction, indeed the same act. On careful consideration, the Court is satisfied to adhere to the authority of the cases wherein that question has been considered and decided. The State vs. Sonnerkalb, 2 N. and McC., 280, was precisely this case. And a conviction on both indictments was sustained, on the ground that the defendant committed two distinct offences created by different statutes, and a verdict on one was no bar to the other. A similar question arose in the State vs. Taylor, 2 Bail. 49, where the defendant was convicted of trading with a slave without a permit, and being afterwards indicted for receiving stolen goods in the same transaction, the former verdict was pleaded in bar; being sustained on the circuit, on appeal it it was held np bar; and the defendant was finally convicted in both cases. It can hardly be necessary to add any thing to what is said by Mr. J. Oolcock in the former case, and by Mr. J. O’Neall, in the latter.

The test by which the question is to be determined, whether a former conviction is a -bar to another prosecution, is this: would the evidence necessary to support the second indictment, have been sufficient to procure a legal conviction on the first ? Now, the offence of trading with a slave without a permitáis proved without reference to the subject matter of the trading, the article concerning which the dealing takes place, or to the fact of the defendant having a license to retail. If be bad a license to retail, be could not be convicted on the indictment for retailing, although be might have sold liquor to a slave without a permit, and thus be guilty on the indictment for trading; so if the slave bad a permit to trade, and be bad no license to retail, be might be convicted of retailing without license, although not guilty of the unlawful trading.

Again, the constituent ingredients of the offences are essentially different: they must be described differently, and by no legal possibility could the defendant be convicted of unlawful trading’ with a slave, on an indictment framed merely for retailing without license; nor could be be convicted of the latter offence, on an indictment for trading with a slave; and this is another test: or rather it is an application of the same test in a different form. The court will not disturb the cases of Sonnerkalb and Taylor.

In the two last cases, for retailing without license, and trading with a slave, the motion is refused.  