
    
      The State vs. Thos. W. Kinman.
    
    The fact that a slave, stolen in this State, was found fivo months afterwards in the possession of the prisoner in Alabama, was allowed to go to the jury as evidence of the prisoner’s guilt; and fortified by other evidence was held sufficient to sustain a verdict of guilty.
    
      Before O’Neall, J., at Laurens, Spring' Term, 1854.
    The report of his Honor, the presiding Judge, is as follows:
    “ The prisoner was indicted, in the first count, for stealing a man slave named Henry, the property of Melmoth M. Hunter; in the second count, for aiding the said slave to run away and depart from his master’s service.
    
      “ The owner of the slave, Melmoth M. Hunter, about the last of July, 1852, at his residence in Laurens district, missed the slave. He heard by letters, in December, 1852, that he was in Montgomery, Alabama. He sent an agent, who brought to him his price. He (Mr. Hunter) said he saw the slave Henry, the week before the trial, in the possession of John D. Hutchison, in the city of Montgomery, Alabama. The agent, William Hunter, proved that he went to Alabama, at the request of Melmoth M. Hunter, and found his slave Henry, whom he knew, in jail in Montgomery. He sold him to Hutchison. The prisoner was identified by James M. De la Hay, of Montgomery county, Alabama. He proved that the prisoner was in the city of Montgomery, Alabama, from the 20th to the 25th of December, 1852; that he there had in his possession the negro man slave Henry, now in the possession of Hutchison, and identified, by Melmoth M. Hunter, as the slave stolen from him in August, 1852. He had also a large six-horse wagon, which he traded to the witness for an old carriage of little value ; he told the witness he could turn it into a two-horse wagon ; he could send it as it was, by the boy Henry, to his plantation, 160 miles above. He said, he spoke of the boy Henry as his own. The prisoner fitted up harness and singletrees to the carriage, and put to it two horses, placing in it four or five bushels of corn, -and, on the 24th of December, started the slave Henry with it. That night the prisoner left Montgomery. The next day the slave Henry was brought back to Montgomery. The witness, De la Hay, stated that the prisoner applied to him on the 24th for writing materials; he invited him to his desk in his office, attached to his livery stable; he said he could not write in public. The witness having furnished him with pen, ink and paper, directed him to a room up stairs. After the slave was brought back, he saw him at the jail, and three papers were then in the hands of persons there assembled, viz:
    
      “ 1st. A pass — ‘ Permit this boy and carriage to pass from Montgomery to Benton,’ (or perhaps :Eutaw’ — the word is difficult to be made out.) ‘Greene county. December 24th, 1852.’
    Signed, ‘T. S. Jones.’
    “2nd. A letter addressed to Mr. Williams, auctioneer, at Greensboro’, directing him to ‘ take care of my boy till Wednesday; I am going to Mobile; if not at Greensboro’on Wednesday, send to Jonesborough. I have swapped my wagon and four mules for a carriage, and got badly cheated.’
    Signed, ‘T. S. Jones.’
    “3rd. A pass, signed T. S. Jones — ‘Permit these negroes to pass,’ &c. These are my memoranda of the papers at the trial.
    “ The witness was asked if he had seen Kinman write; he said he had seen him write once; he wrote for him, while in Montgomery, a prescription, (the prisoner is called Dr. Kinman.) He had this in his possession when the negro was brought back; he compared it then with these papers, and from having seen him write the prescription, and the comparison then made, he believed then and now that the papers were the handwriting of the prisoner. I thought this was enough to permit the papers to go to the jury. They were read, and John Smith was sworn, and the papers were shown to him.; he said he had seen the ■ prisoner write frequently, seven years ago, when he lived near to and traded with him; he said, he believed the papers to be in his handwriting. This, it seemed to me, obviated the objection, if there was any, to the admissibility of the papers, on the proof by De la Hay. It was proved that the prisoner left Green-ville in November, 1852, with two wagons, two mules and two horses for sale; one was a large wagon, the other a small one, attached to it in the rear. The prisoner returned to Greenville 10th January, 1853. On the morning of the 25th of December, 1852, he was seen on the Railroad, at Marietta, Geo., and left the cars at Kingston.
    “ The defence was, that the prisoner came in possession of the slave, Henry, at Columbus, Geo., by delivery to him there¡ 
      by a man named Jones, with directions, as Kelly, the driver of Kinsman’s wagon, was about leaving him, he, the iirisoner, might take the negro, and if he could sell him, he was to do so; and if not sold, and he did not meet him at Montgomery, he was to send him to Greensboro’, and give him (the slave) a pass in his (Jones’) name. To obviate an objection that might arise from want of title, at the prisoner’s suggestion Jones said, he could give him his note for $900, and he would give to the prisoner a bill of sale. This was accordingly done, (but no such papers were produced on the trial.) These facts were fully proved by Henry Kelly, of Greenville, S. C., and Stephen D. Lewis, of Columbus, Geo. If they had been believed, the prisoner must have been acquitted. There was much in their testimony, and the conduct of Lewis in Court, well calculated to destroy their credit. Kelly proved that he drove the wagon, a closely covered wagon, from the prisoner’s residence, in Green-ville, S. C., to Columbus, Geo.; that the slave Henry was not in it, or in company. They (that is Kelly and the prisoner) were seen near Abbeville by James H. Cobb, and at the Savannah river by Swearingen and Clarke; no other person was seen with them. The prisoner was asked by Swearingen how much he would take for his wagon, and said he would not take less than $170. This was regarded as an extravagant price by Swearingen, and he did not press the purchase; he said the wagon was worth $120. This wagon the prisoner traded fin-an old carriage, in Montgomery, worth little or nothing. It appeared that the prisoner had two land warrants to be located in Western Alabama, and a patent for forty acres of land, sold at Lebanon, Alabama. To attend to these was another part of his business, when he left home. The carriage and horses, which he sent by the negro, were held by the person taking up the slave for some time: they were never claimed by the prisoner. One of the horses died; the other and the carriage were sold to defray the expenses of the keep of the horses.
    
      “ The jury were instructed, that the possession of the slave stolen from Melmoth M. Hunter, in Laurens district, S. C., in Montgomery, - Ala., by the prisoner, even after a lapse of five months, might still, unless explained or accounted for, be enough to charge the prisoner with the felony, as committed by him, in Laurens district, S. C. They were told, however, if they believed Kelly and Lewis, or either of them, the prisoner had accounted for his possession, and must be acquitted; that it was their duty to compare their testimony with the other facts proved, and especially to review the facts proved by them, and observe the contradictions which were pointed out, and the conduct of Lewis in Court, and then to say whether they were entitled to credit or not. They were told, too, that they might consider the length of time, and if, in the case of a stolen slave, they thought it enough to negative the presumption of guilt, the prisoner ought to have the benefit of it. I thought, and so said to the jury, that the facility of concealment of a slave, and removal of him from place to place, might very well account for the delay.
    
      “ The jury found the prisoner guilty, but recommended him to mercy.”
    The prisoner appealed, and now moved this Court for a new trial, on the grounds:
    1. Because the proof on the part of the prosecution, that the prisoner was found in possession of the slave Henry, in Montgomery, Ala,, some five months after he left the service of his master in Laurens district, was not sufficient in law to make the legal presumption that one found in possession of stolen property is the thief, applicable to this case; though his Honor thought and ruled otherwise.
    2. Because, if the presumption of guilt from such possession arose, it was conclusively rebutted by proof that the prisoner left the limits of the State, on his journey to the West, without the slave, and that there was no proof whatever of his having acted in concert with any other person who might have delivered said slave to him out of .the State.
    3. Because there was no proof that the man Jones, who conditionally sold the slave to the prisoner, in Columbus, Geo., was ever in this State, or could have been acting in concert with the prisoner in the commission of the felony charged.
    4. Because the proof in behalf of the prisoner was, that he • acquired possession of said slave in Columbus honestly, and' that if he gave the passes to him in Montgomery, offered in evidence, it was in pursuance of his contract with Jones in Columbus, by virtue of which he obtained possession of the slave.
    5. Because the Court ruled that the passes and letter received in evidence were competent to go to the jury upon the statement' of Mr. De la Hay, who said he had never seen the prisoner write but once, and was not able, from that alone, to say that he believed the papers were in the handwriting of the prisoner, but from comparison of those papers with the one he saw written, and the circumstance that the prisoner had possession of the slave in Montgomery, and applied to witness for pen, ink and paper to write while at his house, he was induced to believe that the papers were in his handwriting ; though he would not say so positively; this ruling, it is submitted, was inconsistent with the rule laid down in the Court of Appeals in the case of the Slate vs. Blease ; and there was no proof that they were found in the slave’s possession.
    6. Because the acquiring possession of a slave beyond the limits of the State, even if stolen by others, without proof of participation with them in the commission of the offence here, is no offence against the laws of this State, for which the prisoner .could be indicted in this Court.
    7. Because the verdict of the jury was not only without evidence to support it, but against evidence and the law of the land.
    
      Sullivan, Jones, Easley, for appellant.
    
      Reid, solicitor, contra.
   The opinion of the Court was delivered by

O’Neall, J.

In this case I will take up the prisoner’s 5th ground first; for if the evidence to which it relates was properly before the jury, then it constitutes a strong circumstance, indeed an almost insuperable one, showing the guilt of the prisoner.

I have never had any reason to doubt that the papers were properly proved by De la Hay ; but, as is said in the report, if there was any objection to that proof, it was obviated by the evidence of John Smith, who proved the papers to be the writing of the prisoner, according to every requirement! It is therefore unnecessary to notice that ground further.

Taking up the other grounds, in the order in nvhich they are set down, I will proceed to their consideration.

1st. This ground supposes, that the possession by the prisoner in Alabama of a slave, stolen in Laurens, So. Ca., by some one, five months after the larceny, was no evidence of the prisoner’s guilt. The presiding Judge instructed the jury that it might be. This instruction is to be understood, as applying to the case then proved; and therefore, that the fact of possession of a slave stolen in this State, in another State, five months after the larceny, unless explained or accounted for, would be evidence of the larceny committed in Laurens, So. Ca., not conclusive, but to be weighed with the other facts. The rule is stated 2 East. P. C., 656, § 93, thus: It may be laid down generally, that whenever the property of one man, which has been taken from him without his knowledge or consent, is found upon another, it is incumbent on that other to prove how he came by it; otherwise, the presumption is that he obtained it feloniously.” This presumption, as the author remarks, is strengthened, weakened or rebutted, by concomitant circumstances. The length of time between the finding of the goods, and the theft, is one of the circumstances weakening it, from the difficulty of identifying the goods, or of accounting for the possession, or the facility of changing hands. The prisoner has had the full benefit of the length of time; for the jury were told that they might consider the length of time, and if in the case of a stolen slave, they thought it enough to negative the presumption of guilt, the.prisoner ought to have the benefit of it.

It is true, as my report shows, that I advised the jury, as was right and proper that I should, that I did not think it ought to have any such effect; for in the case of a slave, there was no difficulty of identification, or of accounting for the possession. Neither was he such a chattel as ordinarily passes by mere delivery, without observation or witnesses. So, too, the facilities for concealing a slave, and removal of him from place to place, were abundant reasons why time should not per se negative the presumption of guilt.

The error of the prisoner’s counsel is, in supposing that there is any artificial rule whereby any particular period of time would negative the presumption.

The cases of Rex vs. -, 12 Eng. C. L. R. 216, and Rex vs. Adams, 14 Eng. C. L. R. 474, were nisiprius cases, in which the Judges presiding advised or directed an acquittal of the prisoners, where goods had been lost, in one for sixteen months, and in the other for three, and then found in the possession of the prisoners. There was no other evidence, and in the last case the goods were an axe, a saw and a mattock. In such a case, it is clear that the presumption was too weak to justify a conviction. But even in that case, and the preceding one, the Court merely held, that the evidence was not enough to convict. In this case the presumption had abundant other evidence to fortify and strengthen it. The facts that the prisoner swapped his valuable wagon for an old, worthless carriage ; that he put to it two horses — placed in it poor — and started the slave in it from Montgomery, on the 24th December, 1852, with the papers mentioned; and notwithstanding the slave was taken up, and the carriage and horses kept for months, and finally the carriage and one horse were sold (the other horse having died), yet the prisoner never appeared to claim either slave, carriage or horses, are very strong to show his guilt.

I have assumed that the slave had the papers mentioned in the report, and now to be noticed; for that was one of the matters on which the jury passed, and which they have affirmed. The first of these literally copied appears to be as follows: 1st. “Permit this boy and carriag to pass from Montgumray to Yeuton Green county the peapal will please let him hav Feed for himself and horses — he rvill pay for it. December 24th, 1852,” signed, “T. S. Jones.” 2nd. “Permit thes negros to pass from Greens Burow to Jones Burow thence to Eleton then to Ash-ville Sincler county then to Tarkey-town then to Pollards Bluff on Goosy River to Tillman Watson the peapal will pleas let them have food for themselves and horses they will pay you for it,” signed “T. S. Jones.” 3rd. A letter addressed on the outside, “ Mr. Williams the Oxener at Greens Burow Alibay.” This had been sealed with a wafer. It, on being opened, was found to be written literally as follows: “ Mr. Williams the Oxener at Greensburer Ala will pleas tak car of my boy untill wens-day and if I am not thar by that time you will pleas send him to Jones Burow To Mr Sam Taran until I meet him thar I am gon to Mobiel and if I Seta my business thar I will com by your plais if not I shall hav to go to Tuscaloosa and I can meet my boy at Jones Burow on the stag he will pay his bills I swpt my wagon and four muls for a carriag and got badly cheated doo this and accommodat” (signed) “T. S. Jones.”

These papers are in the handwriting of the prisoner; the wretched spelling corresponds with the prisoner’s habit, as proved by Smith; they were probably written in the office of Mr. De la Hay, in an upper room, to be out of observation. The last alludes to a transaction, known only to the prisoner and De la Hay, the swap of the wagon for a carriage. When these papers are read in connection with the fact, that the slave Henry was dispatched by the prisoner on the evening of the 24th with the carriage — and it is remembered that that slave had been stolen in Laurens, So. Ca., can there be a doubt that the prisoner is the guilty thief 7 Who is T. S'. Jones? He is the prisoner, is the answer. For he wrote the name, and he is the man who swapt the wagon for the carriage. He tells us, in the letter, that the boy, as he calls him, is his. “Take care of my boy until Wednesday.” “ I can meet my boy on the stage,” are his observations. He spoke of the slave to De la Hay, as “ his.” Taking all this — with the fact that he is the only man who is known to have had possession of Henry from the 28th July, 1852, when his master lost him in Laurens, So. Ca., to the 24th December, and how can there be a doubt that he must show how he came to have him in possession, or failing to do so, that the legal presumption of guilt, from the possession, must have effect.

The second ground assumes that which the finding of the jury negatives. It is true the slave was not seen by Cobb, Swearingen or Clarke; but they did not lift the cover and examine the contents of the wagon. There the slave might have been, and the jury believed was, secreted. It is true Kelly proved that the slave was not with them; that he never saw him until they reached the creek this side of Columbus, Georgia. But the jury discredited him — and I think very properly!

The 3rd and 4th grounds assume that- the prisoner obtained possession of the slave from T. S. Jones at Columbus, Georgia. This the jury have also negatived. It rested altogether upon the proof of Kelly and Lewis — neither was believed, or ought to have been believed. The fact, that unwarily escaped Lewis, that he had seen Jones’s signature to a paper, in the possession of the prisoner, and that the initials of his name were “ J. H.” showed that Jones was a fiction, and like most cases of this kind, was a prepared man to account for an act of villany.

The sixth ground rests mainly on the same false assumption. The jury did not believe that the prisoner acquired possession of the slave at Columbus, Georgia, or at Montgomery, Alabama. They believed that he obtained possession in Laurens, So. Ca. He was there stolen. The prisoner is found in possession of him in Georgia and Alabama, and the facts shown in the prisoner’s defence all go to fortify the legal presumption from possession, that he stole the slave. This of course reaches back to the time and place, where the larceny was committed 1 If the ground could be sustained, it would be impossible to convict the prisoner of any crime in South-Carolina, Georgia, or Alabama. For if it were true, that the possession in Alabama of property stolen in this State, was no evidence of guilt here, the prisoner must be acquitted here; when tried in Alabama, he would prove the slave was stolen in South-Carolina, and he must be acquitted there. Such absurd consequences show the falsehood of the ground. The error is in supposing that possession is the crime, when it is only the evidence of it.

The seventh ground needs no comment: the facts too plainly show the guilt of the prisoner.

The motion is dismissed.

Wardlaw, Withers, Whitner, Glover and Munro, JJ., concurred.

Motion dismissed.  