
    
      The State vs. Thomas Motley. Same vs. William Blackledge.
    
    Indictment for tho murder of a slave named Joe, the property of a person unknown:— Heldf that proof,
    1. That the person killed was a negro, was prima fade evidence that he was a slave ;
    
      % That he called himself Joe, and was so called hy the prisoner, was sufficient evidence of his name $ and
    3. That he was a stranger to the witnesses who saw him alive, and his owner unknown to them, although he said he belonged to M. — and that his remains when found were in such a state that they could not he identified, was sufficient evidence to sustain the allegation that he was the property of a person unknown.
    So much of a confession as led to the discovery of a material fact may he given in evidence, although the party was induced to make the confession hy persuasion and hope of immunity.
    An objection, that one of the grand jurors, who found the hill, was not qualified to act as a juror, comes too late after arraignment, trial, and verdict.
    On the separate trial of B., upon an indictment against M., B., and R., for murder, the jury found “the prisoner guilty” : the Circuit Judge immediately directed the verdict to be amended hy the foreman hy inserting the name of the prisoner on trial, and as amended to he published in the presence of the jury before they had left their box: — Held, on appeal, that such procedure was propor. “
    
      Before O’Neall, J., at Colleton, Fall Term, 1853.
    This was an indictment against Thomas Motley, William Blackledge and Derril Rowell, for the murder of a slave named Joe, the property of a person unknown.
    The prisoners severed in their defence. Motley was tried first, and Blackledge next. Rowell’s trial was continued to the next term, for want of time.
    On the trial of Blackledge, it was shown, that a negro man calling himself Joe, and who said he belonged to Manigault, was taken up as a runaway by one Grant, on July 4, 1853 ; that during that night, Rowell, in company with Blackledge, called upon Grant, who transferred the possession of the negro to Rowell, he undertaking to take charge of him until Grant could take him to jail at Walterborough. This proof was not made on the trial of Motley. The next day, July 5, according to the testimony on both trials, the negro, unknown to any of the witnesses, was seen in the possession of the three prisoners. They had a number of dogs with them. They called the negro Joe, and he answered to that name. They said they had whipped him because he would not tell his master’s name; but he repeatedly said that he belonged to Manigault. Three witnesses testified to the cruel and barbarous treatment to which the negro was that day in their presence subjected by Motley and Blackledge — two of the witnesses thought that the treatment was sufficient itself to kill him ; the third, that if sent to jail he must have died. A physician, who heard the evidence, testified that the negro would have died from the abuse he received, as detailed by the witnesses.
    The witnesses described Joe “ to be a black negro, hair very kinky, about five feet six inches high, and twenty-two years of age.” When they left he was alive and in the possession of the prisoners. Circumstances, given in evidence on the trial, led to the belief, that after the witnesses left, the negro escaped, or was permitted to fly by the prisoners, was pursued by them with their dogs,”overtaken and killed not far from the place where last seen by the witnesses. On the 17th or 18th of July, Motley and Blackledge were arrested. Blackledge, by persuasion and hope of immunity, was induced to make a confession. On the trial of Motley, the witness was allowed to state only so much of the confession as led to the discovery of the bones and hair of a negro concealed behind a log in a swamp, not far from the place where Joe was supposed to have been killed. These remains were not identified. The bones were those of a man whose size corresponded with that of Joe, as described by the witnesses. On the trial of Blackledge, his confession was brought out by himself without objection on the part of the State. It was to the effect, that after the witnesses left, the negro escaped, was pursued with the dogs by Motley on foot and Black-ledge on horseback, was overtaken and killed by Motley, and his body concealed behind the log where his bones were after-wards found.
    
      In Motley’s case his Honor, after stating the evidence, concludes his report as follows:
    “ The law of the case was fully explained to the jury ; the fact that the person killed was a negro was prima facie enough to show that he was a slave. The fact whose bones those found were, was left to the jury. They were told if they believed on the proof, that they were Joe’s, then the corpus delicti, the dead body, would be established, otherwise not. I thought, and so said to the jury, that the prisoner was, on the facts, guilty of murder, or of no offence; for there was no provocation; the negro was humble, as one of the witnesses said, as a dog. He was a runaway, but he was in the prisoner’s possession, and there seemed to me no excuse for violence. The jury were however told, that they could, if they chose, convict of killing on sudden heat and passion. I suffered no part of Blackledge’s confessions to go to the jury, save that the witness, Pinckney, by his direction, found the bones.
    
      “ The jury convicted the prisoner of murder.”
    Motley appealed, and now moved for a new trial, on the grounds:
    1. Because it was not in evidence, that the negro Joe was a slave.
    2. Because the bones found were not identified as the bones of Joe.
    3. Because the evidence against the prisoner, Thomas Motley, reduced the charge from murder to manslaughter, or to killing in sudden heat and passion, inasmuch as the negro was pursued as a runaway, which pursuit was lawful.
    4. Because his Honor permitted part of the confessions of Blackledge to go to the jury.
    5. Because the verdict is in other respects contrary to law and the evidence in this case.
    In Blackledge’s case, his Honor concludes his report as follows :
    “ The jury were instructed to inquire whether the prisoner was an actor in the death of the slave? Did the negro die from the treatment he received from the prisoner and Motley, or concurred in by them? If so,' I thought, there was nothing in the case to reduce the killing to sudden heat and passion. The negro was humble and yielding in all things; he was a runaway, but he was in possession of the prisoners, and so far as I could see, they acted without excuse ; still the jury were told, if they chose, they might find the prisoner guilty of killing on sudden heat and passion. The law of murder was fully and carefully explained. The difference between a principal in the first and second degree, was fully explained. Fley and Rochelle's case was taken as an instance ; I carefully applied the doctrines to this case. The prisoner was not indicted as an accessory after the fact — he was simply indicted for murder. I did not think it was necessary to consider a case which did not arise, neither on the pleading, nor on the proof. After I finished my charge, which had covered the whole case, Mr. Tracey asked me to charge on some propositions which he stated; I thought them covered by what I had already said to the jury, and so stated to him. As to the first ground in arrest of judgment, I know nothing; it was first brought to my attention in the grounds of appeal, which I received about two weeks after the adjournment of the Court at Walterborough.
    
      “ The jury returned a verdict, ‘ We find the prisoner guilty as soon as read, it was directed to be amended, by being written, ‘We find the prisoner, William Blaekledge, guilty.’ This was signed by the foreman, and published in the presence of all the jury before they had left the box.
    “ The case of the State vs. Yancy, (3 Brev. 142,) certainly disposes of such an objection.
    “ The person killed was a negro, and that establishes his status as a slave until the contrary appears. He was called, and answered by the name of Joe. His owner was unknown; for, although he constantly said he belonged to Manigault, yet the witnesses all said they did not know to whom he belonged. No one had claimed him.”
    
      The prisoner, Blackledge, also appealed, and now moved in arrest of judgment:
    1. Because one of the grand jurors, A. H. Jenkins, who found the true bill on the indictment, was not by law qualified to act as a grand juror, he not being, at the time of the indictment found, nor ever having been, a freeholder in this State, nor otherwise qualified, as is required by Act of 1799, to be a grand juror.
    
      2. Because the verdict of the jury, as assented to and published, was, “We find the prisoner guilty,” and the words “William Blackledge” were afterwards interlined after the word “ prisoner,” and against objection made, but the jury was not asked, after the alteration, if they agreed to the verdict as it stood altered. And it is respectfully submitted, that this alteration, if authorized by law, was so informally executed, that the verdict, as it now stands, is bad ; and that, on the verdict rendered, no judgment can be passed, for uncertainty.
    3. Because the indictment is, under the Act, for the murder of a slave, and there was no tittle of evidence that the negro charged as murdered, was a slave.
    4. Because if the Act of 1740 is relied on for the presumptive proof that a negro is a slave, this is not a case for the operation of the presumption of the Act.
    5. Because the indictment is defective, if the presumption of the Act is relied on, inasmuch as it is not in a form to render the presumption of the Act available.
    6. Because the name of the negro was not sufficiently proved.
    7. Because of uncertainty in the proof that the name of the owner of the negro, if he had an owner, was unknown ; and if unknown, that reasonable diligence was used to obtain his name.
    And failing in that motion, then, he moved for a new trial, on the grounds.:
    1. Because his Honor refused a motion for a continuance made on the ground, that a material witness for the defence was absent, and on a showing, respectfully submitted as having been sufficient, that due diligence had been used to procure her attendance.
    2. Because his Honor told the jury, in his charge, that there were no circumstances in the case that could make the offence manslaughter, while it is respectfully submitted that there were such circumstances.
    3. Because, while his Honor told the jury that one might well be convicted as a principal who was not actually present at the time an offence was committed, his Honor did not explain to the jury, either by statement or illustration, the peculiar combination of circumstances for the application of such rule, and the case required such an explanation.
    4. Because his Honor did not charge, and refused to charge the jury under what combination of the circumstances proved, and the inference of the jury thereon, the prisoner might be found “ not guilty,” while it is respectfully submitted that the case called for such a charge.
    5. Because his Honor did not charge, and refused to charge, the jury on the difference in guilt between an accessory after the fact anda principal, while it is respectfully submitted that the circumstances proved called for such a charge.
    6. Because the charge of his Honor was in other respects, and the verdict of the jury, contrary to the law and the evidence.
    
      Williams, Brown, Treadwell, for Motley,
    cited, on his first ground of appeal, State vs. Harden, 2 Sp. 155; State vs. Hill, 2 Sp. 150; Nelson vs. Whetmore, 1 Rich. 318; State vs. Fleming, 2 Strob. 464 ; State vs. Cheatwood, 2 Hill, 459 ; Arch. Cr. PI. 484 ; State vs. Schroder, Riley, 65; Parris vs. Jenkins, 2 Rich. 106; 2 Green. Ev. § 108, 111; State vs. Scott, 1 Bail. 270 ; Ex parte Ferrett, 1 Mill, 194 ; State vs. Hayes, 1 Bail. 275; on the second ground, 3 Green. Ev. § 133, note 2; on the third ground, 3 Green. Ev. § 129; 2 Brev. Dig. 129; and on the fourth ground, 1. Green. Ev. § 219.
    
      Carlos Tracey, for Blackledge,
    cited, on first ground in arrest of judgment, 7 Stat. 291, Act 1799 ; Constitution, Art. 1, § 4; and read affidavits to show want of qualification in the juror. On the second ground in arrest of judgment, he cited, Bac. Abr., Yerdict, G.; on third, fourth and fifth grounds, he cited, Hobart, 91; 2 Sp. 152; lb. 129 ; 1 Rich. 324; Huger vs. Barnwell, 5 Rich. 273 ; 4 Mass. 439 ; 6 T. R. 286; and on sixth and seventh grounds, 25 Eng. C. L. R. 327; 2 Leach, 862; 1 Car. & K. 82 ; 2 East, 514 ; 1 Green. Ev. 129 ; State vs. Harlan, 5 Rich. 470.
    Hayne, Attorney General, contra,
    on first ground in Motley’s case, said, That some rule on the subject must be established for such cases as this, where no proof can be furnished whether the negro killed was a slave or a free man. Unless there be a presumption one way or the other, there could, in such a case, never be a conviction. The Act of 1740 establishes the general rule that he is presumed to be a slave ; and that rule has always prevailed ; on the fourth ground, he cited Joy on Conf. 81, § 11. On the first ground in arrest of judgment, in Black-ledge’s case, he cited, 1 Bail. 271; State vs. Slack, 1 Bail. 330; Stale vs. Williams, 2 Hill, 381; State vs. Quarrel, 2 Bay, 150; State vs. O'Driscoll, 2 Bay, 153 ; 1 Tread. 234; State vs. Billis, 2 McC. 12; and on second ground, State vs. Smart, 4 Rich. 356.
   In Motley’s case, the opinion of the Court was delivered by

Whitner, J.

The prisoner was indicted, with two other persons, William Blackledge and Derrill Rowell, for the murder of a slave, and, having been convicted, at the last Fall Term for Colleton District, submits a motion to this Court for a new trial on grounds which I will consider in the order presented in the brief:

First, because it was not in evidence that the negro Joe was a slave.

The indictment charged the murder of a slave named Joe, the property of a person unknown. This being a proceeding under the statute, it was a material allegation that the deceased was a slave, and hence proof of the fact was also necessary.

The deceased, when living, was seen only by witnesses to whom he was a stranger; his remains when found afforded no means of recognition by inspection. The evidence relied on was that “ Joe was a black negro, hair very kinky, about 5 feet 6 inches high, and 22 years of age.” The prisoners had him in charge, stripped and cruelly treated him. They had dogs, accustomed to the pursuit of fugitives, and had doubtless apprehended the deceased as a runaway. Though the fact is not particularly reported in this case, it would seem to be a just inference from its history. Was this evidence sufficient to sustain the allegation 1 Independent of the strong corroboration which the occasion afforded, the arrest and possession, the conduct of the prisoner as well as that of the deceased, this Court concurs in the opinion expressed by the presiding Judge, that the fact of color was prima facie enough to show that the deceased was a slave.

In this State, the existence of two distinct races and conditions has furnished a rule on this subject. This has been incorporated in our legislation and adjudged cases, and has been long and universally acted upon. The distinction is founded on color, and the presumption of freedom or slavery goes with it. Although the A. A. 1740 has been referred to, and much commented on in this case, the rule, I. presume, had its foundation in the introduction of African slavery, and dates from "a period whon the free negro was less common amongst us than at the present day. The earlier legislation too, with its numerous regulations in reference to negroes and other slaves,” according to the parlance then, will be found instructive. The preamble and the Act of 1740, (7 Stat. 397,) are alike unequivocal. The former recites that, whereas slavery has been introduced and allowed, and the people commonly called negroes, &c., have been deemed absolute slavesand the enactment declares that all negroes, &c., then or after in this Province, shall be, and remain forever hereafter, absolute slaves, with certain exceptions therein enumerated, with the very significant j'proviso, that if any negro, &c., shall dispute the fact of slavery, the prima facie presumption shall be, that such person is a slave, and the onus of proof will lie upon him, except again and alone in favor of the Indian in amity, when the burthen shall lie with the defendant. From that day to this, I think, it may be asserted this is the presumption which arises upon the color. Though I am not aware that the question has been distinctly raised in our Courts in the present form, it has been again and again collaterally held and announced in a series of cases.

In 2 Speer, 155> (State vs. Harden, note,) it is said that by law every negro is presumed to be a slave. The onus of proving his freedom when questioned is cast on him.”

In 1 Rich. 318, (Nelson vs. Wetmore,) the Judge said if the occurrences had transpired where slavery did not exist, other presumptions might have arisen — but, having occurred in North-Carolina, there, as here, the African blood is prima facie evidence of slavery.” In 2 Speer, 129, (State vs. Brown,) the Judge, delivering the opinion of the Court, said, The legal condition of all persons of Hetty’s color is slavery; and it cannot be necessary to allege a knowledge of what the law presumes.”

In the case of Huger vs. Barnwell, (5 Rich. 273,) a like interpretation of the A. A. 174U was treated as a matter not to be questioned.

The restraints, as of right imposed on the liberty and actions of this class, by the white population of the country, resting alone on the presumption of color, as a matter of caution, safety and policy, are of daily occurrence ; and, when acts are done in good faith, founded on such presumption, it will always avail as a legal excuse. In this particular case, the prisoner has nothing to complain against the operation of the rule. He has been placed in no greater jeopardy, to say the least, that the deceased should be regarded as a slave rather than a freeman, and, if the remaining facts found by the jury be true, the sequel discloses the agency whereby presumptions, as to this particular ground of inquiry, could alone be had.

The second ground invites to a review of the proof of the corpus delicti. Although the jury have found the fact against the prisoner, the extreme caution, recommended by humane and eminent jurists in such a case, entitle him to this review. Here no eye-witness has testified to the killing, and the mutilated remains, when discovered, afforded no means of recognition by those who had seen the deceased when living. No precise rule can be laid down, perhaps, further than that the circumstances should produce an assurance of moral certainty. These Ido not propose to re-state. They are fully stated in the brief. The painful narrative of this bloody tragedy may well satisfy the mind of any dispassionate reviewer, that on this point there is no room for a reasonable doubt. The death and identity of the body are too well established, by a train of circumstances, to justify a disturbance of the verdict on this ground.

The third ground, that the evidence reduced the charge, from murder to killing in sudden heat and passion, requires but a passing remark. However lawful the pursuit and apprehension of a fugitive slave, the conduct of this prisoner, and of his associate in guilt, affords an exhibition of a wicked purpose and gross recklessness of human life, rarely met with. The brief is examined in vain for any evidence of provocation on the part of their unfortunate and unoffending victim, or for the usual indications of a mere purpose to reclaim and restore a runaway to his rightful owner. The extraordinary and dangerous agencies used in the original capture, the cruel and protracted abuse of the slave when in their power and possession, preclude all such extenuation, sought to be inferred, in the absence of proof, because of an alleged attempt to escape. However such disclosures may awaken the bitter invective and calumny of ignorant and deluded opposers of our institutions, such means, for such an end, will never find vindication nor excuse amongst ourselves.

The fourth ground complains that part of the confessions of Blackledge, (the other party implicated,) was permitted to go the jury. His confessions were made by persuasion, and the hope of immunity, but the narration was stopped on objection. The witness was permitted to state the fact, that he found the bones of a negro man, as he believed, in the swamp, behind a log, &c. ; with the additional fact, that they were found by Blackledge’s direction. The fact of discovery was clearly competent, no matter by what agency. The law is clear that, although such confessions are to be excluded as a whole, yet, when, in consequence of information obtained from the prisoner, any material fact is discovered, it is competent to show that such discovery was made conformably with the information given. (1 Green. Ev. § 231.)

The reason of the rule is obvious — confessions, induced by hope, or extorted by fear, are delusory; they may be and often are false — but, when the fact discovered shows so much of the statement true, the reason for the exclusion ceases. In this case, a guilty participation, in acts of violence to the slave, was shown against each. The prisoner and Blackledge were of the same party, and engaged in the same unlawful enterprise. On the trial of the prisoners, it was competent to show the acts of Blackledge, otherwise a severance would lead almost invariably to an evasion of justice.

If Blackledge had shown these remains, or, had been traced to the spot when engaged in an effort to conceal them, by one on the watch, or, if a dog, even of one of them, had retraced the spot and disinterred the remains, either fact would have been competent in this investigation — any act of Blackledge’s, showing his knowledge of the locality of these remains, was competent. This did not necessarily implicate the prisoner; but, the fact that one, charged as an accomplice, gave information, which led to the discovery, was one in a chain of circumstances entitled to be heard and competent.

I have thus disposed of the grounds taken for a new trial.

This Court has felt that the gravest consideration is due, whenever the life of a human being is involved.

Such consideration has been bestowed on the prisoner’s case, and finding no proper ground on which to remand his case to another jury, his motion for a new trial must fail.

It is therefore ordered that the motion of the prisoner, Thomas Motley, for a new trial, be dismissed.

O’Neall, Wardlaw, Withers, Glover and Munro, JL, concurred.

In Blackledge’s case, the opinion of the Court was also delivered by

Whitner, J.

The consideration, which has been given to the several grounds of appeal, in the case of Thomas Motley, dispenses with the necessity of considering such of them, in this case, as involve the same questions.

The first ground, in arrest of judgment, raises an objection to one of the grand jurors, composing the panel which returned the bill of indictment.

I shall not discuss the character of the objection, or the manner in which it is now presented, or the effect that the disqualification of a single juror, in such a panel, might have, without reference to other facts that might claim consideration.

The view, entertained by this Court, disposes of the objection, on the general ground that, after arraignment, trial and verdict, it comes too late to avail the prisoner. The infrequency of such an objection has enabled me to derive but little aid from adjudged cases, there being none, of which I am aware, in our own State.

It must be conceded, however, as a part of our fundamental law, that “ no man’s life can be taken away by judicial proceeding, but by the judgment, on oath, of twenty-four men, at the leasta grand jury must accuse, twelve, at least, of whom, must concur in finding the bill of indictment; a petit jury, consisting of twelve, must concur in finding the truth of the fact of which the prisoner is accused, before a verdict of guilty can be rendered. These, with other protections which are thrown around the prisoner by the law, must be held inviolate. So, too, it is to be conceded that grand, as well as petit jurors, ought to be prodi et legales homines. Well-founded objections, impugning these essential safeguards, are entitled to, and must receive just consideration, when presented at the proper time. It has been held that such an objection is too late, as to a petit juror, after verdict. (State vs. Slack, 1 Bail. 330 ; State vs. Williams, 2 Hill, 381.)

The argument is, that the case is not analogous. That special opportunity, by the forms of proceeding, is afforded for objection, and so the accused specifically advertised. But this extreme caution is founded in the humanity of the law, and is well suggested by the graver consequences that attach as the cause thus proceeds to trial. The inquiry by the grand jury, however important and essential, is ex parte and preliminary. The great ends to be attained are, doubtless, to bring the guilty to punishment, and protect the innocent from the annoyance of false accusation. But, although the law has interposed this safeguard, independently of the defendant’s knowledge as to the individuals who compose the grand jury, or, it maybe, even of the fact of its organization at the time, this cannot be said up to the time of the trial. He is entitled to a copy of the indictment, as well as a list of the array who may be called to pass upon his trial, three days before it. He has, therefore, the means of information, and must take the consequences of an omission to avail himself thereof. The proper time, thérefore, to urge an objection of the kind in question, must be when called to plead to the indictment. By special plea, or other suggestion to the Court, before proceeding to the trial, such objection would assuredly secure consideration. Cases, in the English books, bearing on this point, may be found, though of rather rare occurrence. (31 St. Trials 543 ; 3 Inst. 34; Cro. Car. 134, 147; 1 Jones, 198.)

The second ground refers to an amendment of the verdict, directed to be made by inserting the name of the defendant, he having, in the verdict first announced, been designated as “The Prisoner.” The amended verdict was‘signed by the foreman and published in the presence of all the jury before they had left the box. The consent and approval of the jury was manifest. The effect of the amendment was simply to furnish that designation by a reference to the verdict alone, which was susceptible of ascertainment by reference to the whole record of the proceeding, amounting to a certainty that well might have precluded any benefit or advantage to the prisoner, had it remained. Be this as it may, the amendment was in accordance with the practice of many years, and never, perhaps, called in question since the decision in State vs. Yancy, (3 Brev. 142.) In that case the amendment was permitted, some days after the verdict had been rendered, though certainly the better practice is to amend before the dispersion of the jury or any entry on the journal.

The sixth and seventh grounds question the sufficiency of the proof, as to the name of the negro, and as to reasonable diligence in discovering the name of the owner. The verdict of the jury is perhaps quite a sufficient reply as to both points. The proof, necessary to ascertain the true name of a slave, or the diligence, required, to be deemed reasonable in the effort at discovering the name of the owner, may not well be subject to any very intelligible rule. The slave seems to have been called and known by the name, alleged in the indictment, by the party having him in custody, of whom the prisoner was one. That, on an occasion of that sort, he was called and answered by such name, would seem quite sufficient primafacie, the name in this investigation being used but as a means of designating the slave referred to. The other averment would have been fatal, if the proof had been that the name of the owner was known. The negative is of difficult proof — the affirmative would have availed the prisoner. That it was not had was at least some indication that it could not be had. But it may be observed, that the mutilated remains of the deceased furnished little prospect of discovery, as the means of recognition were thereby effaced. The rule may well be relaxed under such circumstances, especially when the act was traced to the hand of the accused.

No other grounds have been relied on in this case, except such as were substantially presented in the former case, and, they being ruled unfavorably to Motley, the same result follows in this case also.

It is therefore ordered, that the motions of the prisoner, William Blackledge, in arrest of judgment, and for a new trial, be dismissed.

O’Neall, Wardl aw, Withers, Glover and Munro, JJ., concurred.

Motions dismissed.  