
    The State vs. Moses Gossett.
    An indictment for negro stealing need contain no allegation as to the value of the slave. ' 4
    A confession made in jail to a third person in the presence of a deputy sheriff who had no control over the jail, held to be admissible.
    A by-stander who hears a conversation is a competent witness to prove it, though he may not have heard the whole.
    A verdict of guilty upon an indictment for negro stealing sustained, though there was no direct proof that the offence was committed within the district.
    'BEFORE GLOYER, J., AT UNION, SPRING TERM, 1856.
    The report of his Honor, the presiding Judge, is as follows :
    “ The prisoner, who lives in Union District, was indicted under the Act of 1754, for stealing a slave named Ned, the property of James Shannon, also of Union District, and for aiding Ned to depart from his master’s service.
    “ On the 20th September, 1854, Ned, who had belonged to James Shannon about three years, left his master’s service without cause or consent. The prisoner arrived at the house of John Scott, of Madison county, Georgia, on the 5th of November, 1854, with Ned, whom he called Tom, and said his name was William Nevers. He informed Scott that he had owned Ned some three years before, and that he had been brought from Virginia about ten years ago. The prisoner sold Ned to Scott for five hundred dollars and a mare, and gave a bill of sale for him as Tom, and signed by him in the assumed name of William Nevers.
    “ Acting upon information which he had received,- Shannon went to .Georgia, and in October, 1855, found Ned at the plantation of Scott, who, on proof of property in Shannon, promptly delivered him to his owner. A short time after Shannon and Scott saw the prisoner in the jail at Union, where he had been committed, charged with this offence. He at first denied that he had ever seen Scott, but the latter enquiring what he had done with the mare, he replied that he had swapped her with a” stranger whom he had met in the road, and whose name he did not know. James Shannon lives near Beaver Dam, about' eleven miles from Unionville, and the prisoner lives in an opposite direction twelve miles from Unionville. Ned was purchased from Gee, seven or eight miles above, and in the direction of the prisoner’s residence.
    “ J. B. Tollison, connected with the prisoner, (by marriage, I believe,) called to see him in jail during the present year, and asked Joseph Fant, a deputy sheriff, but having no control over the jail, to accompany him. Fant was the only witness at this interview who was examined. Tollison asked the prisoner if any person was concerned with him, and if'so, he had better come out and tell it, as it would be best for him — that it was a bad scrape he had gotten into, and he had better tell the truth, it would be best for him. In reply, the prisoner said he never would have done so, unless he had been persuaded. He confessed that he had sold Shannon’s negro to Scott, in Georgia, for five hundred dollars and a creature — that he gave two hundred and sixty-five dollars to the man who got him to carry the negro away, and who informed him that the negro had run away for some time, and his owner believed he was drowned — ■ that the negro came to him in the road near to his house, and that he started with him about daylight. Fant said he did not hear what passed between Tollison and- the' prisoner in the big room.
    “ The prisoner’s counsel moved to exclude these confessions, but it did not appear to me that there was any threat used, or such an inducement held out as would authorize their exclusion. It was objected that Fant was incompetent to prove the conversation with Tollison, and that the latter should have been produced. Being of the opinion that any one who hears a confession, although it is not made to him, is competent to prove it; and especially when he is invited to the interview, this objection was overruled, and the evidence received.
    “ Respecting the fourth ground of appeal, in addition to the prisoner’s confession, the proof was, that he lived in Union District, about a quarter or a half mile from the Spartanburg line — that a stage road, running by Posey’s, is one and a half miles from his house — that a public road crosses the district line a half mile or a mile — and that a horse mail road passes about two hundred yards from his house. This evidence was •submitted to the jury, and their attention was particularly called to the enquiry, whether the offence was committed in Union District.
    “The fifth ground of appeal charges the presiding Judge with an omission of duty, in failing to correct an opinion confidently urged by the Solicitor, and which, it is submitted, is erroneous. In his argument I remember no proposition which he stated or pressed upon the consideration of the jury, requiring the correction or interposition of the Court.
    “ So much of the charge as the sixth ground proposes to state, is misapprehended. The jury was informed that the Act of 1754, under which the prisoner is indicted, made that a felony without the benefit of clergy, which before had been punished as larceny — but that the proof of the removal of the chattel, which the rules of the common law require in larceny, still applied to the offence created by this Act.
    “ The jury found the prisoner guilty.”
    The prisoner appealed, and now moved this Court in arrest of judgment, and for a new trial, on the grounds:
    In arrest of judgment,
    
      Because the indictment does not allege the negro man slave, Ned, mentioned in the indictment, to be of any value:
    And for a new trial,
    1. Because the confessions of the prisoner, made to J. B. Tollison in the jail, in the presence of the deputy sheriff, Joseph Eant, under strong assurances that it would be best for the prisoner, were improperly admitted in evidence against the prisoner, and should have been rejected.
    2. Because J. B. Tollison, the person to whom the confessions were said to have been made, should have been called, as that was the best evidence as to the manner in which the confessions were obtained, and what these confessions in truth were.
    3. Because the witness, Joseph Fant, the deputy sheriff, who proved the confessions, stated distinctly that he did not hear all the confessions, as he only heard what occurred in .the dungeon, and not that part of the same in the big room.
    4. Because there was no proof that the offence, if any, was committed in Union District, as alleged in the indictment.'
    5. Because it was forcibly and confidently contended by the Solicitor, whose argument, when not corrected by the Court, stands and passes for good law with the jury, that the prisoner might stand on the soil of Virginia, and never commit any act or deed within the limits of South Carolina, and still he might, under our Act of 1754, be convicted for inveigling a slave from his owner’s employment, in which it is conceived there was -error, which should have been corrected by the Court in his charge to the jury, which was not done.
    6. Because his Honor, in his charge to the jury, stated to them, that the offence of stealing a slave, was indictable at common law, as for the larceny of other goods and chattels.
    7. Because the verdict is contrary to law and the legal evidence in the case.
    Thomson, for motion.
    Dawkins, Solicitor, contra.
   The opinion of the Court was delivered by

Withers, J.

The prisoner has been convicted of inveigling, stealing, and carrying away a slave. His appeal has commanded that consideration, which can never be denied, to a conviction of a capital felony, which is brought under the review of this tribunal. The result of that consideration is now to be pronounced.

1. The motion in arrest of judgment. This goes upon the footing that no value is affixed to the slave stolen, by allegation in the indictment.

In the case of the State vs. Miles, (2 N. & McC. 1,) it was a ground of appeal that the judge on circuit refused to instruct the jury, that the verdict might find the value of the slave to be under twelve pence. On appeal it was adjudged, there was no error therein, for that the penalty of death, without benefit of clergy/ was the judgment of the law, irrespective of such a verdict.

Where the sentence to be pronounced, the consequences to the sovereign who prosecutes, and those, present or future, which the conviction visits upon the condémned, are wholly independent of greater or less value, alleged or proved, in property stolen, is not conceivable what sound reason can be suggested, applicable to any species of larceny, that shows the necessity or the convenience of alleging or proving value. The reason why this should he done, and must be done wherever the grade of the offence is ascertained by the value, is most manifest; and, therefore, when the larceny is at common law, and is or is not grand larceny, by the standard of 'a certain value, the case is wholly different from the present. Accordingly, we find it laid down in 2 Hale, 183, thus: “ If theft be alleged of any thing, the indictment .must set. down the value, that it may appear whether it be grand or petty larceny.” The right to claim clergy, and that being allowed the grave consequence that follows a second conviction; the doctrine of forfeiture of goods when and where that prevailed — all combined to give importance to the rule in larcenies at common law. We find the distinction well observed by our cases which have arisen under the statute upon stealing promissory notes, &c. It is in such cases required, that the rule as to grand and petit larceny shall be observed in indictments and convictions touching that class of offences; and, accordingly, it was observed, in the case of the State vs. Thomas, (2 McC. 527,) that “no other description of the thing in which the offence was committed is necessary to be stated in an indictment founded on a statute, but that contained in the statute itself, unless the value become necessary to fix the grade of the offence.” And the reason is, that the consequences arising from that description of larceny are, by the statute, graduated by the rule that distinguishes grand and petit larceny.

It is suggested, that allegation of value is material always, with a view to restitution. Of course it will be observed, that this is not material where the specific thing is to be restored. Restoration, by way of equivalent damages out of the estate of the felon awarded by judgment at the end of a prosecution, is altogether unheard of in this country.

Hawkins does say, (Yol. 2, p. 323,) It seems questionable whether it be needful to set forth the value of the goods in an indictment of larceny, for any other purpose than to show that the crime amounts to grand larceny, and to ascertain the goods, thereby the better to entitle the prosecutor to a restitution. His right to restitution, where indictment was instituted, never did exist, at Common Law, for that was the suit of the king, and he had the goods, on conviction of felony, by forfeiture, and he might, and did, of his free grace, grant restitution of various sorts, as of heritable blood attainted, goods, &c. It was only by proceedings called “Appeal,” that restitution existed at Common Law, for that was the suit of the party. 3 Inst. 242. By 21 H. 8, c. 11, (now wholly repealed in England by Stat. 7 & 8 Geo. 4, ch. 27,) a Justice presiding at a conviction of felony, was empowered to issue a writ of restitution for the benefit of him who prosecuted, or procured prosecution and conviction. But such a writ has not been issued for more than two hundred years in England, as we léarn from 2 Haw. 241-2, and note 2. The Court orders restitution at the trial, and in default the owner resorts to trover. And although the aforesaid Statute of Henry 8th was made of force here, yet the practice of ordering restitution of stolen goods never prevailed here ; never, at any rate, since this State became sovereign and independent, as was said in Cannon vs. Burris, 1 Hill, 372; and for good reason. If restitution was an act of praiseworthy grace on the part of the sovereign, or of the sovereign and his parliament, through a justice and under Statute, that was because the goods were his by forfeiture; and since they never were forfeited to the State, and cannot be, by fundamental law, there is no room for the principle or the practice; and, therefore, if the said Statute of Henry ever proved useful or applicable, it was during a portion of our colonial existence, when the crown could take by forfeiture.

It is true, that to make an article the subject of larceny, at common law, it must have some value, though the very least is sufficient. Even if we apply this doctrine to the statutory offence under consideration, it is enough to remark, that value is inseparable from the allegation of the indictment, that a slave was stolen, whereby the owner was deprived of his service; and such deprivation for the shortest time will constitute that element of the crime. Covington’s case, 2 Bail. 569.

There is indeed a peculiar value about a slave, one not common to property in general insomuch that á Court of Equity will decree a delivery specifically. The offence committed by the prisoner is in the least possible degree dependent upon value. If the property be of value to the owner, it is immaterial how it may be to the rest of the world. Rex vs. Clark, 2 Leach, 1036. It may indeed be regarded as approaching a great public mischief; for though a slave, inveigled and stolen, may perform as much work, and perchanGe command as much money, his allegiance is corrupted, he is a fit instrument of mischief, and the moral corruption may spread.

Neither upon reason nor authority can we allow that the motion in arrest of judgment is well grounded.

2. It i's insisted for a new trial, that the admissions of the prisoner should have been excluded; first, because they were not free and voluntary, in a degree to render them admissible; and second, they were reported by a bystander to whom they were not directed, and who did not hear a previous conversation.

If this prisoner should be considered as unduly seduced by the blandishment of hope, or overawed by the terror of authority, the rule which receives such admissions will be reduced to dimensions so narrow, as to render it scarcely worthy to be retained, as .affording a principle in the law of evidence. Chief Baron Eyre describes the confession which ought to be rejected as one “forced from the mind by the flattery of hope, or by the torture of fear.” Warrickshall’s case, 1 Leach. 299. The disqualifying circumstances that attach to the evidence must, in this as in all other cases, where competency is the question, be addressed to the mind of the Court. So varying are the circumstances themselves, and so variant are the effects of the same circumstances upon different prisoners, that a rule, a priori, is quite impracticable; and there is this protection to the prisoner, that in any case the circumstances of the confession, or admission, go with the evidence itself to the jury; and like every other description of evidence, it will command more or less faith as a vehicle of truth, according as it is seen with good sense and impartiality through all the circumstances that accompany it. The views of this Court, however, are so fully and carefully expressed in the cases of Kirby, 1 Strob, 155, 378, and of Vaigneur, 5 Rich. 391, upon this subject, that it would be but repetition to indulge in a re-argument; and those cases are full authority to carry the admissions of this prisoner before the jury.

But it is again objected, that Tollison, an interlocutor, and not Eant, a bystander, could alone be heard to disclose what was said. We are aware of no semblance of authority, and perceive no plausible reason for this position. All that a party said in the conversation reported must be heard, i. e., all the witness can repeat. -But it would be wresting such rule of evidence from its sphere to apply it to the point now made. As well might we say, that none shall be heard because the witness cannot repeat all for want of memory, as that he shall say nothing because he did not hear all. When all is not heard, or not remembered, it is the less satisfactory; but surely this is only matter of observation to the jury. But to our surprise, plain as this matter is, we have direct authority in Covington's case, 2 Bail. 569. The present case warrants the further remark, that it was another and distinct interview, in another room, which the witness examined did not hear; and there was not any evidence, that it even related to the subject matter of the testimony heard, or that there was any conversation about the crime imputed; and besides, it is fair to say, that the prisoner had ready and efficient means to compel the attendance of the other witness, if he deemed it material that he also should, have been heard.

3. The only other matter of appeal, not obviated by the report, is the complaint, that there was no evidence that the offence was committed within the venue. Nobody said he saw the act committed in Union District, and it is presumed nobody will contend that this was the necessary description of testimony. But it was in proof, that the owner of the negro and the prisoner dived in Union District, the latter near the boundary, it is true. If the prisoner’s craft left no other evidence upon this point; if he who knew the fact (provided it were otherwise) afforded no other evidence, why the jury must work upon the materials before them; they alone could resolve a question of technicality ; they did, and it cannot -be said there was no evidence. If crimes of furtiveness, secrecy, and cunning, will reduce the investigation of them to scanty materials, the law must not thereby be enervated, and the progress of justice arrested. And surely if such contrivances of criminals have forced the law to deal with circumstances to ascertain the substance of guilt, the like material may be properly used to ascertain the locality of that guilt.

We are thus conducted to the conclusion, that neither in law nor in fact, are the prisoner’s motions in arrest of judgment, or for a new trial, well founded; and they are, therefore, dismissed.

O’Neall, Wardlaw, Whither, Glover and Munro, JJ., concurred.

Motions dismissed.  