
    Jones vs. The State.
    June 15.
    Witness. Competency of persons of mixed, blood. Under the act of 1794y C*. 1, $ 32, declaring all persons of mixed blood, descended from negro and Indian ancestors to the third generation inclusive, whether bond or free, to be incapable in law to be witnesses ia any case whatever, except against each other, 220 person thus, disqualified can be a witness, in a state prosecution, for a defendant, who belongs to one of the disqualified classes.
    At October term, 1836, of Roane circuit court, the grand jury indicted the plaintiff in error, a free man of color, of petit larceny. The chattel — a meal bag — charged to have been stolen, was found in his possession, and on being accused of the theft, he said it had been given to him by Peter, a free man of color, who lived near Kingston, and to whom he had taken meal. To show the probability of this account, on the trial before his Honor Judge Keith, of the 3d circuit, at June term, 1837, (he plaintiff in error proved by Thomas Brown that he had, in the summer of 1836, dealt in meal in Kingston^ that Peter then lived near Kingston, and traded in meal, beer, cakes, &c., and that Peter’s house was on the direct rout from Kingston to the residence of plaintiff in error. He did not offer to introduce Peter as a witness; and in order to prevent the jury from drawing from the omission an inference of guilt, his counsel requested his Honor to charge them, that Peter was not in law a competent witness; that the circumstances proved by Brown were admissible, and were the best evidence the nature of the case would admit of, to account for the manner of his coming into possession of the bag. His Honor refused so to charge the jury, but instructed them, that Peter, the free man of color, or even a slave, was a competent witness in law for the defendant, and that he should, therefore, have produced him, as well as proved the circumstances stated by Brown.
    The jury returned a verdict of guilty, and a new trial being refused, and judgment pronounced, the defendant appealed in error.
   Reese, J.

delivered the opinion of the court.

The plaintiff in error is a free man of color. The property charged to have been stolen, was found in his possession and at the time it was so found he alleged that he had gotten it from Peter, a man of color. The case was one in which the alleged guilt of the prisoner depended upon circumstantial testimony, and on the part of the prisoner, certain circumstances were proved by Thomas Brown to make the truth of the statement that he had gotten the property from the slave, Peter, probable.

The defendant’s counsel before the jury insisted, that Peter, a free man of color or slave, was an incompetent wit-iless for the defendant, and therefore the circumstances, as proved by the witness Brown, were admissahle and the best evidence the nature of the case admitted, to prove how defendant came into the possession of the property; and asked the court so to charge the jury.

The court refused so to charge, but charged that Peter, the free man of color or a slave, could be examined, and was a competent witness in law for the defendant, and should have been produced, as also the circumstances proved by Brown, the witness. The only question in this case is,— whether this opinion of the court is correct?

The act of 1794, c 1, § 32, declares that all negroes, in-dians, mullattoes and all persons of mixed blood, descended from negro or indian ancestors to the third generation inclusive, though one ancestor of each generation may have been a white person, whether bond or free, should be held and deemed to be incapable in law to be a witness in any case whatever, except against each other. Here the disqualification is general and absolute, and the exception limited to a single and distinct case. These persons says the act, except against each other, cannot be witnesses. The court said, that the man of color could be a witness for the defendant and against the state. This opinion is not authorised by the act of assembly.

The cases, under this act, in which these disqualified persons can be witnesses for each other, are when plaintiff and and defendant both being men of color, the witnesses may at the same time be said io be reciprocally witnesses against each of the parties. Perhaps the practice in Tennessee may have been heretofore much more liberal than the statute; With that we have nothing to do, — as the law speaks, so it is our duty to speak.

Let the judgment be reversed and a new trial be granted»  