
    The State vs. John H. Boise and Diederich Stuke 
    
    The confession of a clerk, in the absence of his employer, that lie had sold wine to a servant girl, is’not evidence to charge the employer; and a new trial will be granted to the absent defendant, without prejudice.
    Before Richardson, J., at Charleston, January Term, 1841.
    This was an indictment for selling wine to Matilda, the slave of B. F. Dunkin. Stuke was the clerk of Boise. The evidence must be referred to for the details. But it appeared, that Stake was asked if he had not sold a bottle of wine to a negro girl, that morning, and he replied, yes. But, soon afterwards, having conversed with two men in the yard, he returned and said, “no — no, I forgot.” Boise was sent for, and p*™ claimed the shop. Mr. Dunkin had before come in with Matilda, L asked her where the wine had been bought, and she pointed out the place. He then went for a search warrant — returned and then found Boise present. Mr. D. told him, Boise, his clerk had admitted he had sold a bottle of wine to his servant, this morning — upon this, Stuke said, “no, no— I spoke too quick.”
    I charged the jury that they were to decide, 1. Whether there had been any illegal trading. If any, 2. Who had done it, Stuke, or Boise, or both defendants. 3. That the confession of Stuke, made in the absence of Boise, could be evidence only against himself — not Boise. 4. That the jury were to decide, from all the circumstances of the case, whether Boise had, or had not, authorized the illegal trading alleged to have been done by his clerk, Stuke. And, if he had done so, he might be convicted — but otherwise, not to convict him.
    It will be seen, by the evidence, that there was adduced against Boise scarcely any thing to implicate him in the particular trading; but that he was master of the shop. The jury returned a verdict of guilty, and the defendants appeal.
    GROUNDS OP APPEAL.
    1. That the allegation in the indictment was, that the defendants sold a bottle of wane to Matilda, the slave of B. F. Dunkin, and the proof merely that Stuke, (the clerk) confessed that he had sold a bottle of wine that morning, (his principal being absent at the time of both the sale and the confession,) to a negro girl, or a servant girl, without in any manner indicating' whose, or what negro, or servant girl ; and his Honor erred in charging the jury, that they could convict the defendants on such evidence ; and the finding of the jury is unsupported by the evidence.
    2. That there was no evidence at all to convict the defendant, Boise, there having been no proof at all to connect him with the selling by. his clerk in his absence ; and there being no proof at all of any selling, save the clerk’s confession, subsequently retracted, and afterwards denied in the principal’s presence ; and the finding against the principal was in violation of the cardinal principle, that one man cannot be convicted *of an offence on the mere confession of another, and that only of his own guilt.
    3. The verdict was, in other respects, contrary to law and evidence.
    Kunhardt, for the motion,
    contended that the mere confession of a party of his guilt should never be given in evidence against a third person. The confession of Stuke, he argued, did not come up to the allegation in the indictment, but he argued that the proof should correspond with the allegation.
    
      Bailey, Attorney General, contra,
    asked whether the Court would interfere and set aside the verdict of the jury; where there is no misdirection of the Court. He contended that juries might weigh all the circumstances, as well as the words. 1 Phil. Ev. 76, 77.
    
      
       Same parties next case above ; and in 2 McMort. 252. An.
      
    
   Curia, per

Ricilardson, J.

In this case, we think that the defendant, J. II. Boise, ought to have a new trial, without prejudice. And it is, so ordered. But the motion on the part of D. Stuke is dismissed.

The whole Court concurred.  