
    
      The City Council v. C. F. Seeba. Same v. J. Hahn.
    
    In a summary process under the ordinance of the city of Charleston, against loitering, in describing the negroes it is not necessary to set forth either the sex of the negroes or their names, or the names of their owners.
    
      Before the Recorder, in the City Court of Charleston, February, 1849.
    The first case was a summary process, under the City Ordinance against loitering. The process alleged that the defendant did permit and allow certain negro slaves, whose names anc| owners were unknown, to assemble and loiter in his shop, <fcc. The offence was alleged to have been com-on tjie qst day of April, 1849. To this process the defendant demurred specially, and assigned for cause, that the allegation in regard to “certain negro slaves, whose names and owners were unknown,” was entirely insufficient to put the party upon trial for the offence, and altogether wanting in that certainty which the law requires in criminal and quasi criminal cases.
    The question was argued by Mr. Pressly for the defendant, and by Mr. Porter, the City Attorney, for the plaintiffs. Ya-rious authorities were cited. 1 Chitty’s Crim. Law, 211, as to the names of third persons. So, 2 Bailey, 66, State v. Crank; State v. Rudolph, 3 Hill, 257; City v. Gundeman, 3 Hill, 75; State v. Shroeder, 3 Hill, 61; City Council v. Johnson, cited in 3 Hill, 66 ; case of Hillegas, 1 Spears, 310.
    His Honor says: “ I supported the demurrer, principally on the ground, that one of the circumstances which must be supposed to be known, that of the sex of the slaves, should be stated, although the name of the slave, and of the owner, not being known, might be dispensed with. I did not feel that the authorities relied on gave me any warrant to go further than this. I should add, that it appeared the 1st of April was Sunday, and an argument was founded upon this circumstance, but I did not consider it as affecting the principle upon which I supported the demurrer.”
    The second case was a process under the same Ordinance as the preceding case; and the only difference between that case and the present was, that the sex and number of the slave, whose “ name and owner were alleged to be unknown,” was alleged. Looking at the nature of the offence, and applying the authorities referred to in this and the former case, the Recorder held that the allegation was sufficiently definite and certain, and overruled the defendant's demurrer. The case went to the jury, who found a verdict for the plaintiff.
    In the first case the plaintiff appealed, on the ground that the process was sufficient, and the demurrer should have been overruled.
    
      Porter, City Attorney, for the motion.
    
      Pressly, contra.
    In the second case the defendant appealed, on the ground that the demurrer should have been sustained, the process being defective.
    
      Pressly, for the motion.
    
      Porter, City Attorney, contra.
   Guria, per Richardson, J.

These two cases depend upon proper construction of the 5th sec. of the City Ordin-°f March, 1840. “ No negro or person of color, whether bond or free, shall be permitted to assemble or loiter in any liquor store, or in or about the door thereof, &c. &c.; and the owner or keeper of such store &c., shall forfeit and pay a sum not less than five dollars nor more than twenty dollars, in every case where such negroes or persons of color shall be •found assembled in his or her store, or at the door thereof, or shall be found loitering or sitting down therein, or violating any of the provisions of this section of the Ordinance contrary to the true meaning thereof.”

This Ordinance constitutes a police regulation for the purpose of preserving the order of the city.

It is evidently a law in the nature of a remedial act, to prevent a mischief and to apply a remedy. The terms are, ■“ No negro or person of color,” and from the nature of the subject and the object in view, the Ordinance must be construed with rational liberality, so as to make it enure to its proper and beneficial ends.

Why, then, is it necessary to describe the assemblage of negroes in any other way than in the words of the Ordinance ?

To require the names of the negroes or of their owners or their sex, would be requiring, in many cases, an impossibility. Such assemblages usually disperse, upon the least alarm, and few can tell their names or their owners’s names. And as to their sex, it is so easy to disguise it by a change of clothing, that the informer, although he plainly saw the assemblage, could as rarely prove the sex as know the names of the negroes, or of their owners.

This Court are therefore of opinion, that in describing the negroes it is not necessary to set forth either the names of the negroes nor of their owners nor their sex, in the process.

If the defendants in such cases can prove a permit or license for the loitering of any slaves, such defence would only be the safer and more certainly applicable to any negro, when no name or sex had entered into the description of the ne-groes in the process.

The risk or hazard in such cases would be to the prosecution, and not to the defendants.

It follows from such reasoning, that in the case against C. F. Seeba, the decision of the City Judge must be reversed and the demurrer overruled, and in the case against J. Hahn must be affirmed.

O’Neall, Evaks, Wardlaw and Frost, JJ. concurred.

Motion granted in the first case, and refused in the second.  