
    Bill, a slave, vs. The State.
    (CIRCUMSTANTIAL EVIDENCE.)
    Assault with intent to commit a rape.
    Bill, a slave, was indicted in the Circuit Court for Lincoln county, for an assault with intent to commit a rape on Mary Smith, a free white woman. He was tried by Judge March-banks and a jury of Lincoln county, at the February term, 1844, and convicted and sentenced to be executed.
    From this judgment he appealed.
    
      Nicholson 8f Rodgers, for the plaintiff in error.
    
      Attorney General and Taul, for the State.
   Turley, J.

delivered the opinion of the court.

The prisoner, a negro slave, was indicted and convicted in the Circuit Court for the county of Lincoln, of the offence of an assault, with the intent to commit a rape, upon the body of one Mary Smith, a free white woman; and prosecutes an appeal in the nature of a writ of error to this court.

. The.fact, that the offence was committed, is very satisfactorily proven, and the only question upon which any doubt arises is, as to the identity of the prisoner, and the person who committed the offence.

Mary Smith proves, that as she was travelling after night, in the road between the town Fayetteville and the residence of her mother, in the county of Lincoln, she met at a branch about half a mile from the town, a negro, whom she at first supposed to be one of her mother’s; she asked him who he was, to which he replied, one, and gave no other answer. They then parted, the negro proceeding towards the town, and she on her rout to her mother’s. After proceeding about one mile and a half further on her road, she found a negro standing in the corner of the fence; a negro boy who was travelling with her, spoke to him, and he answered as if he was alarmed, or had been running; she passed on, and he pursued, overtook her, and after the use of insolent language pulled her from her horse and threw her upon the ground, informing her what his designs were. The negro boy who was with • her came up to her rescue, and beat off the assailant, upon which she fled to a neighboring house for protection, which she found. In the adventure a basket, in which she had some articles of clothing, and among others a pair of pantaloons, an apron for a small boy, nurse, was dropped, and the possession not regained. The facts are all, also, proven by the negro who rescued her from the assault.

The question of difficulty is, whether the person who made the assault was the. same she met at the creek, and the prisoner, Bill.

John Watson proves, that on the night the offence was committed, he was oil'the road travelled by Mary Smith, about one-fourth of a mile from the town of Fayetteville, and about the same distance from the branch where Mary Smith first met the negro; that he saw her pass, and a short time after-wards a negro man rode up and enquired of him, who those were that had passed, to which he replied, he did not know; the negro then observed, that he thought it was Mrs. Husbands and Zack; and said he wanted to see Zack, and immediately turned in pursuit in a gallop or trot. Witness thought the negro was either Bill, the prisoner, or his brother Lewis, and he could not tell which, for they resembled each other much.

Tom, a slave, (the property of James Bright, who lives on the road at a point between the place where Watson proves the negro turned in pursuit and the place where the offence was committed,) proves, that he is acquainted with the prisoner; that his usual place of sleeping is about one hundred yards from his master’s house, but, that, the night this offence was committed, he went to sleejj at his master’s house; how long he slept he does not know; when he wakened he started to his own house; whilst yet in his master’s yard he heard the screams of the woman from the direction in which the crime was perpetrated; that he and a fellow-servant, named Charles, went into the house, made a fire, sat down and talked some time about the hollowing they had beard. Bill came to the fence and called him out; he found him holding his horse; he enquired of him if his brother Lewis had been there that night, to which witness responded no; he then enquired of the prisoner if he had heard the hollowing, to which he answered no. Witness then observed, that it might have been heard to town. Prisoner then observed, that he believed he. did hear a little hollowing, but did not pay any attention to it. He stayed about ten or fifteen minutes, and then went away, but in what direction witness does not know.

Alfred, a slave of John Moore, proves, that on the night the offence was committed, Bill left home about one hour after night, and returned in the morning before day. They both slept, usually, in same room.

The facts proven by these witnesses are conclusive, almost to a positive certainty, that Bill was the negro who made the assault; that he was the negro met by Mrs. Smith at the branch, and who turned in pursuit of her, as is proven by Mr. Watson, will not admit of a doubt. Watson believed it was him or his brother Lewis; it could not have been Lewis, there is no proof that he was on the road that night. In a short time after the commencement of the pursuit, and after the offence had been committed, Bill is found at the cabin of the negro Tom, en-quiring for Lewis; it must have been Bill of whom Watson speaks.

The identity of Bill and the negro met by Mrs. Smith at the branch, and the negro who turned in her pursuit, being established, there will be but little difficulty in arriving at the conclusion, that it was he also who made the assault. He started in pursuit upon the alledged ground, that he thought it was Mrs. Husbands and Zack, her servant, and that he wanted to see Zack. Now, if this had been true, he certainly would have overtaken them, in the road, as he was Well mounted, and started in rapid pursuit. Mrs. Smith on the contrary, was badly mounted and encumbered with a child and luggage, and travelled slowly. It is not possible, that prisoner could have found any difficulty in coming up with her, and he would have done so, mounted on his horse, if there had been any truth in the expressed desire to speak to Zack, as he pretended to be-Heve the negro to be. The fact, that he did not so overtake them is a powerful, nay conclusive argument against an honest design in the pursuit. But did he meet with them again? We think most assuredly he did. But how is the question? Mrs. Smith, after passing the branch, where she first met the negro, had to travel the two containing sides of a right angled triangle. Bill, in pursuit, dismounted and travelled the side subtending the triangle, and was enabled to throw himself upon the road a little in advance of her, when she met him again the second time. What are the reasons for believing this?

1st. The easy practicability of the thing.

2d. The fact, that if he did not overtake her in this way, he never did at all; a thing totally inconsistent with his expressed design, and the rapidity of his, pursuit; there being nothing to have changed his purpose, if it were either lawful or unlawful.

3rd. The fact, that his manner of speaking when met the second time, was that of one alarmed, of who had been violently exercising.

4th. The fact, that when asked, in so short a period after the commission of the offence, that it must have been impossible for him not to have heard the screams of the woman, he first denied it, and then admitted it cautiously and with an effort at carelessness; treating lightly, lamentations of distress which had alarmed a whole neighborhood, and which a witness observed, might have been heard to town, a distance of some two miles.

5th. The improbability, that the idea of committing such an offence, would have so suddenly entered the brain of a person meeting the woman unexpectedly, attended by a servant, and near enough to a dwelling house to have received protection from it, had its inmates been at home.

6th. His presence on the road, within a short distance of the place where the offence was committed, and within a short time after its perpetration.

7th. The fact, that a place is found, where his horse, from appearance, was in all probability hitched, when he commenced the pursuit on foot.

The view of the case is also much strengthened by the fact, that the cloths of the nurse of Mrs. Smith, which were in the basket lost by her, were afterwards found in the possession of the prisoner, and his account of the manner in which he obtained them is unsatisfactory and contradictory.

But a strenuous and ingenious attempt has been made to weaken the force of these powerful and cogent circumstances, in the first place by proof, that the prisoner was in the town of Fayetteville on the night the offence was committed, as early as 10 o’clock, and that if this be so, it is impossible that he should have perpetrated the offence, at the point of two miles from .town, at the time it must have been committed, which it is contended must have been as late as 10 o’clock. To this defence, it is to be observed, that it is impossible to ascertain from the proof, with any thing like precision, at what hour the offence was committed, and it is equally as uncertain, at what hour the prisoner was first seen in town on that night. Mrs. Smith says, that when she passed through Fayetteville, the candles were lit, and the citizens sitting before their doors. Alfred says, the prisoner left home about an hour after night He lived at a point beyond where the crime was committed, and travelled towards town, while Mrs. Smith was travelling from it. Suppose it to have been later (as it was in all probability) when Mrs. Smith left town, than it was when the prisoner left home,, and it could not have been much later, yet they would have been thrown together upon the road, for it cannot be pretended, that he arrived in town before Mrs. Smith passed through it. If Bill travelled the road, he and Mrs. Smith must have met, and the probability, from as near an approximation of time as can be made, is, that they did meet, and at the "branch. If that was not Bill, she did not meet him on the road that night, a thing totally inconsistent with the well established fact, that he travelled the road, and that he could not have arrived in town before Mrs. Smith left.

It is also to be observed, that the proof leaves it uncertain, whether Bill arrived in Fayetteville as early as 10 o’clock.

The witness, Edmond, a slave of John Bright’s, who testifies to the fact, says his master sent him to the well to get water to bathe a child, he went twice to the well, and saw Bill one of the times, but which he does not recollect.

John M. Bright says, that as he was going to give instructions to his servant, Edmond, to get the water, the clock struck 10; how long after this before the prisoner was seen by Edmond it is impossible to tell. And if a struggle for time is proof of an alibi, twenty or thirty minutes become a matter of much importance.

But the whole matter of this defence, is too loosely put together, and of too uncertain and doubtful character to be permitted to outweigh the positive proof, that Bill was not in town, but on the road within time, and at a proper distance, to have been enabled to have committed the offence.

In the 2d place, by a conflict arising out of the dress of the negro met at the creek, and the one where the crime was committed. The negro at the branch had on white pantaloons, and was in his shirt sleeves. The one who committed the of-fence had on white pantaloons, and a dark colored coat. The proof shows, that the negro met at the branch was riding on something of a dark color, which was taken to be his coat, and which it no doubt was, as he was going to town, he would most probably take his coat with him, althought it was now warm weather, as he might well expect to meet his 'acquaintances, and not choose to do so in his shirtsleeves, and when he dismounted for the pursuit, he might well put on his coat, for two reasons: to avoid its loss, during its absence, and to enable him to appear in a different guise from what he had been seen by Mrs. Smith at the creek, and by Mr. Watson after he had passed her.

Then, upon the whole view of the case, we are constrained to say, that we think, that the proof establishes clearly and satisfactorily that the prisoner, Bill, did meet Mrs. Smith at the branch; that he parted from her on his route, to town; that he soon contemplated the perpetration of the offence which he attempted; that for that purpose he pursued her; that with the view of concealing his identity, and the more easily to overtake her, and effectuate his nefarious design, he dismounted from his horse, and by taking the hypothenuse of the angle she was travelling round, he came into the rc ad in advance of her; that after being disappointed in his design he returned to the place where he had tied his horse, and after regaining him', he went to the cabin of negro Tom and enquired for his brother Lewis, and hearing nothing of him, he then pursued his way to town, where he remained till he returned home in the morning.

These facts being true, his guilt is established, and we, therefore, affirm the judgment of the Circuit Court.

The questions of law, raised in this case, have nothing in them, and need not be discussed.  