
    STATE v. STEPHEN BAILEY.
    ''Where there is a eonfliet of testimony, which leaves'a case in doubt before a jury, and the Judge, in his. instructions, uses.language which may be ■ subject to misapprehension, and is calculated to mislead, this Court will order a venire de novo.
    
    INDICTMENT'for trading -with a slave, tried before 'Osboenu, J., at the Fall Term, 1862, of Davidson Superior Court.'
    The indictment was for trading with Miles, a slave, belonging to one Eobert B. Jones, for a piece of bacon. The prosecutor, Jones, swore, that on a certain night of one of the first ■ days of March, (he could mot tell which) he found his negro boy, Miles, near Ms smoke-house, with some pieces of bacon in a bag, which the negro had taken from the smoke-house.; that ho demanded'of the negro whither he intended to take it, and threatened to whip him severely unless he disclosed-: whereupon the slave stated that he intended carrying it to the ■defendant, who was to start to Oheraw the next day, and had .persuaded him to bring the bacon that night. (The conversation of the slave with the master was received by the consent ■of the defendant’s counsel) ; that he then told the slave to >.earry, it to the defendant, as he had intended, and he went with him to near the house of the defendant; that the negro .placed the meat on a stump .and went to the door of the house .and quietly knocked and whistled, v/hen the defendant came out and agreed to give the megro a-do-llar and a half for the ■meat; that defendant stated that he had no smaller sum than five dollars and could not .make the change, ¿but would pay Eim so&n; that he took the meat up and carried -it into the ■house, and then the witness-and the .negro'left. On cross-.examination, he stated that -he allowed the negro to carry four pieces, when one would have answered, ^because he feared the -suspicions of the defendant would be excited if he had .carried but.a small piece of meat. Hetfurther-stated, without ■objection on the part of defendant’s counsel, that he detected ,the defendant once before trading with a -slave, which belonged to his mother, and did not prosecute, because his mother did not wish a fuss in the neighborhood.
    The defendant introduced one Bailey, his brother, who stated that on the last day of February he started with his- brother to Cheraw ; that on the first day they went out of the county of Davidson ; that they were absent sis days, when they returned to the house of the defendant on the night' of 7th of March; he was not certain, but thought that they returned about 12 o’clock at night; that defendant and his wife slept in one room of the house and he in another; that the door was open and he could see or hear whatever occurred in. his brother’s room, and lie did not believe that the circumstances narrated by the witness, Jones, could "have occurred; without his knowledge. He further stated, that on the next day defendant and witness wont to a sale- in the neighborhood and did not return until very late ; that he slept that night in the same room; that on the 8th, he and his brother went to the house of one Hopkins and remained until after 12 o’clock, when they returned and slept in the manner previously described ; that on the 9th,, ho and his brother went to Wades-boro’ as witnesses, and. did not return until the 12th of the month.
    Two witnesses, by the name of IIvmI, stated they were present when a general Quarrel grew up between the witness, Jones, and one Beeves; that there was a great deal said on both sides, which they did not hear or remember, but they were under the impression that, in the course of the quarrel, Jones said he know nothing about the trading, except what the negi'o told him. On cross-examination, one of the witnesses stated that he could not assert, positively, that this was the language of the prosecutor, but it was his best impression.
    One IlopMns testified, that some time in August, the prosecutor same to his field, where he was at work, and asked him what Beeves and Bailey, the defendant, said about his going .to the house of the defendant in June, and said he had not stated, at that time, that Bailey got any meat from hi& negro, but all he knew about it, his negro told him ; but that on the last days of March, he had detected his nfegro stealing meat from his smoke-house; that he didn’t make known to the negro that he had found it ont, but followed him secretly until he saw him place the meat on a stump near the door of defendant’s house ; that the negro went to the door and knocked and whistled, when the defendant came out and agreed to give the negro a dollar and a half for the meat, but he said he had no bill smaller than five dollars; that he would pay him as soon as he could get the change. This witness also stated, that in the same conversation, the prosecutor said, he'would not have prosecuted the defendant, if he had paid the negro for the meat and had not brought suit against him.
    Several witnesses testified, that the character of the prosecutor was bad, and several others testified that it was good.
    The Court charged the jury, that if they believed the witness, Jones, they ought to find the defendant guilty; but it was argued that the prosecutor should not be believed, because of contradictions to his testimony, which had been proved, and because of his bad character; that as to the contradictions, alleged tobe derived from the witness, Bailey, they would enquire, whether there was any fact proved inconsistent with the testimony of the prosecutor ; if they believed the trading took place before the journey to Cheraw, there was no contradiction ; if it took place afterwards, whether there was a contradiction or not, depended on whether there was an opportunity for the occurrence spoken of by the prosecutor, to have, taken place without the knowledge of the witness, Bailey; that it was the duty of the jury to reconcile testimony, if possible; that on questions-of time, depending upon the memory of Witnesses, they would consider whether there might not be errors of recollection as to days, weeks, or hours of the night, when certain occurrences took place. '
    As to the contradictions alleged to be proven by the witness, Hunt, the Court charged the jury, that contradictions, aro more or less strengthened by the recollection of the witness, by his opportunity of hearing all the antecedents and; succeeding parts of the conversation ; the context might ex¡plain the language of the witness and relieve what otherwise might 'be an apparent contradiction.
    As to the contradiction deposed t© by the witness, Hop-tens, it <was t:e be taken, as a whole, inconsistent with the •statements 'of the prosecutor, as to the manner of the negro’s .getting the 'meat and his taking it to the house .of the defendant:; that these matters were not material t© the question of the defendant’s.guilt, whieh depended on what they -might tilinteas to whether he purchased the ■.meat .from the slave after he 'arrived at the house.-; that the contradictions of the prosecutor were immaterial matters, and if they believed them, might .go to his credit.; they would also consider the •testimony so 'far as it confirmed the State’s witness in matters on'which-the guilt of the defendant depended, and -give to each-such force as they believed it entitled to; that as to •the character-.of the prosecutor, they would consider the testimony both for and against it, always weighing- it with -care ,-and scrutiny. -The defendant’s counsel-excepted to the charge.
    Yerdict for the4State .and judgment-of the Court. Appeal !by the .defendant.
    
      Att&rmy 'Gmeral, for the State.
    No counsel for the defendant.
   PeüRsoit, 'O. J.

The evidence in this case, leaves the matter so nearly on a balance, as to require very great consideration on the part of the jury, in order to determine on which ^ide the truth preponderates. When that is the case, it is of the utmost .importance that the words used by the Judge, in .giving his charge, should be precise and accurate and not ,suce¡ptibie of .-a meaning 'which would be calculated to mislead ithe’jury. Iiis Honor puts the case on the credit of the prosecutor,. Jones, and instructs the jury, that it was thdr duty to reconcile the testimony, if possible, and then suggests that a “ collision” between the witness, Jones, and Bailey, the witness for the defendant, might be avoided, on the supposition that Jones was mistaken as to the date of the supposed trading with the slave. It is a rule of law, based: on .the principle, that nO'witness, either on the side-of the prosecutor, or the defense, shall, be presumed to have committed; perjury; that the witnesses should not be put in collision, ánd'a. perjury on-the one side or the other made inevitable, if'the collision can be avoided, by any other fair and. reasonable view of the case, as presented, by the whole of the evidence. We presume-his Honor intended so to-be understood";' but his. words are much stronger,.and were calculated' to mislead.

His Honor also instructs the jury, that in regard-to the alleged contradiction of the witness, Jones, in that He had'said in conversation before-the trial, that all he hnew of the-ne-*-gro’s having taken, the-meat and trading it to the - defendant-was from what the negro had told him, whereasj-on his oath,, he stated that he had detected the negro in the very.,- act oft' talcing the meat, and had-, gone with him, and was present when the defendant committed, the v&ry act of trading, with-the slave, so thathe had caught the defendant.in.the-act, that this contradiction of the<witness, Jones, was an immaterial’ matter,- and went to Ids credit,Sí. the jury believed! it. ( There-had been- no- objection to- the competency of the witness,. Jones, so-we do-not clearly understand.what his Honor means-by the words, “'went to his-cred-it,” in-the connection in which, they were used. Of course, this contradiction went to - his-credit, for it bore on the veryftcsct, and ought to have, had a. very decided-weight with the jury, if they believed it, .in-estimating the credit to which the testimony, of the witness,. Jones, was entitled. There is- error:

Per GuriaM, Judgment reversed!.  