
    The State vs. L. Coleman; Same vs. Same.
    A partner who was not present, and against whom there was no proof that he knew of, or in any wise assented to, the trading of his co-partner with a slave, cannot be made criminally liable for such act of the latter.
    BEFORE O’NEALL, J., AT A SPECIAL COURT HELD AT COLUMBIA, IN JULY, 1837.
    These were two indictments against the defendant and one Hook, for unlawfully trading with a slave. Both cases were submitted to the jury at the same time, but the evidence applicable to each were given separately. In the first case, which was for trading with a slave named Lenius, the property of James S. Gfuignard, the proof was, that the defendants were co-partners in a shop where spirits were retailed; that Hook sold spirits to the slave, but that Coleman, the other defendant, was not present.
    In the other case, which was for trading with a slave, named Frank, the property of John Kinsler, there was no proof of a co-partnership — it was only proved that Hook, in the absence of Coleman, sold the slave a pint of rum.
    The presiding judge instructed the jury that for the trading of one co-partner, both were criminally liable under the words of the Act of 1817, which are, “clerk, agent, or other person acting for himthat each partner should be regarded as acting for the other.
    In the last case, he stated to the jury that there was no evidence of a co-partnership, but that it was possible they might infer it from the facts before them.
    The jury convicted both defendants in each case; and the defendant, Coleman, appealed on the following grounds:
    1st. Because his Honor charged the jury that, under the Act of the Legislature of 1817, the defendant Coleman: might be found guilty, and punished for the criminal act of his co-partner Hook, in dealing, trading, and trafficking with a slave: notwithstanding it was shown that Coleman was absent at tbe time of the trading, and there was no evidence that Coleman authorized or permitted it, or'that he had any knowledge of it whatever, or that such was the practice of the store.
    2d. Because his Honor charged that the fact of Coleman and Hook having been seen together in the store selling goods, was sufficient proof of co-partnership between them.
    3d. Because in one of the cases, no evidence whatever was offered to prove that the defendants were in co-partnership, or that there was any other connection existing between them.
    4th. Because his Honor erred in charging the jury that although there was no evidence of partnership in one of the cases, they might infer it from the evidence'in the other, notwithstanding they were separate, distinct offences, committed at different times.
    5th. Because the finding of the jury was contrary to the evidence.
    
      Black & Arthur, for defendant.
    Edwards, Sol., contra.
   Curia, per Butler, J.

The defendant, Coleman, was not present when Hook, his partner, traded with slaves without a permit, and there was no proof that he knew of or in any wise assented to the trading; and, so far as it appears to the Court, he occupied the position of an innocent party, convicted for the criminal acts of his co-partner. The broad ground taken for his conviction was, that one partner as the agent of the other is liable for the acts of his co-partner under the Act of 1817, whether he assented to them or not. This position cannot be sustained. No one can be held criminally liable for the acts of another, unless he participates in them, either directly or indirectly. And to hold otherwise would be to subject a good man’s will, either to an imprudent man’s inadvertency or a bad man’s design. One partner might furnish the capital and be always absent from the store in which the active partner transacts the business of the concern; illicit trading might be carried on with negroes, not only without the knowledge of the absent partner, but against his wishes and consent, and yet, according-to this, position, he might be found guilty. One may very willingly trust his pecuniary liability to the discretion and conduct of another, where he would be very unwilling to make himself criminally responsible for the willful or inadvertent acts of the same man.

The plain meaning and' purport of the Act of 1817 is, that a shopkeeper may be guilty, not only by trading himself, but for trading by his clerk or agent. In the latter case the trading must be done by his assent, knowledge, or direction, and these must be generally inferrible from circumstances, as they can rarely be established by direct proof. The testimony in such cases, most usually is, general instructions to a clerk— the habit of trading in the store — and such other circumstances as indicate that the clerk acted under the direction and control of his employer. In such cases the employer cannot escape, by suffering the clerk or agent to be punished; he may also be indicted and punished.

This case has been decided by the case of the State vs. Matthew & Conner. In that case, decided May Term, 1835, Connor, the principal, had been convicted on. the Circuit, for the illicit trading of his clerk, Matthew. The Court sent the case back for a new trial, on the ground that there was not sufficient evidence to show that Conner knew anything of the trading by his clerk, contrary to the Act of 1817. Now, if the employer became liable by merely showing that the clerk was guilty, there was no necessity to send the case back, for the conviction of the clerk was allowed to stand. The true distinction was taken by Justice Earle, who tried the case on the Circuit, and by Chancellor Harper, who delivered the judgment of the Court; and that case is decisive of this.

The motion for a new trial is granted.  