
    The State vs. John T. Harrington.
    
      Evidence — Selling Spirits to a Slave — Permit.
    Where one is indicted for selling spirits to a slave, he may justify by showing a permit, and such permit may be proved by showing it to be in the hand-writing of the person having charge of the slave, without examining the person himself.
    BEFORE WHITNER, J., AT MARION, FALL TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “The defendant was indicted for selling spirituous liquors to a slave, Lander, the property of Philander Curtis.
    “ The defendant kept a house at one of the stations on the railroad in Marion District, adjoining which was a shop or bar in which liquors were kept. The principal witness, leader of a patrol, overheard negroes talking of getting some liquor, and Lander, the negro in question, starting towards this shop, was followed by the witness. The negro knocked and the door was opened by defendant, to whom the negro said he wanted ten cents worth of whiskey, and handed his bottle to defendant, who soon came to the door and handed the bottle to the negro, and the witness stepping up immediately, took the bottle from the negro and found in it a pint of whiskey. This was 14th September, 1858, at night, and on his cross-examination, witness said one M. C. Hall, had charge of the negro as well as others, I think at work on Railroad. As matter of defence, witnesses were called to prove the hand-writing of M. C. Hall, to what I understood to be an order. The testimony was objected to, though the witnesses were permitted to speak. One of them was not acquainted with the hand-writing, but had heard Hall acknowledge bis signature. The other had seen him write, and believed the signature his hand-writing. On inquiry-being made for Hall, one of the witnesses said he resided in Sumter District, and the other had seen him here the day before in this town. The day of trial being second of the term, no showing was made or attempted, to account for his absence, and the alleged order was not read to the jury, as defendant did not propose to follow this up with any further testimony.
    
      “ I thought there was higher evidence in the power of the defendant, that liquor was delivered upon the order in question, even if in any contingency, it should be regarded as pertinent to the case made.
    “ The alleged order was as follows:
    “ Mr. J. T. Harrington,
    Dear Sir : — Please send me one bottle of good whiskey or brandy by Lander.
    Tours, truly, &c.,
    September 13th, 1858. M.- 0. HALL.”
    “Thé case was submitted, and the defendant was convicted.”
    The defendant appealed, and now moved this Court for a 'new trial upon the grounds:
    1. Because his Honor refused to permit a paper proven to be signed by M. C. Hall, who was proven by all the witnesses to have the charge of the slave at the time of the alleged trading, to be read in evidence, and overruled the same as incompetent.
    2. Because the defendant, having been indicted for selling spirits to a slave, without the written permit from the owner or person having charge of the said slave, an order signed by the person having charge of the said slave was competent, and the proof sufficient to authorise its introduction in evidence, which his Honor overruled.
    Harllee, for appellant,
    cited 2 Green. Ev. § 49, 50 ; 1 Sp. 294; Eice, 181.
    Mclver, solicitor, contra.
   The opinion of the Court was delivered by

G1.1OVER, J.

Whether the indictment be under the Act of 1817, (7 Stat. 454,) prohibiting the dealing, trading or trafficing with slaves, or under the Act of 1834, (7 Stat. 468,) prohibiting the sale, exchange, gift or delivery of spirituous liquors to a slave, the defendant may justify the act by the production of a written permit from the owner of the slave or from the person having him in charge, to deal, &c. If, therefore, M. C. Hall had charge of the slave, his permit to deal, sell, &c., was admissible unless, as is assumed in the argument, it is secondary evidence. The Acts referred to make the permit competent and sufficient evidence if satisfactory. The testimony of witnesses to prove the execution of the permit, is primary evidence and, when so proved, the law declares it sufficient to sanction the act of trading. We agree with the Circuit Judge that the production of the permit and proof of its execution without further- proof that the whiskey was delivered according to its directions, was not satisfactory, and that the examination of Hall, or of some one else as to the delivery of the whiskey would have removed those doubts which the circumstances of this case are calculated to create; but Hall’s testimony was not indispensable to the proof of the paper, and whether it might have made it stronger or weaker, could not affect its legal admissibility. We are of opinion that the paper should have been admitted and left to the jury to judge of its sufficiency, and a new trial is, therefore, granted.

O’Neall, Wardlaw, Withers, Whither, and Mhhro, JJ., concurred.

Motion granted.  