
    
      The State v. David Scates.
    
    That circumstantial evidence is legally competent, which, although not conclusive, yet when no explanation appears, warrants the finding of a jury, by the force of inferences, (which when wholly unrebutted are sometimes irresistible;) especially in cases of illicit trading and retailing of spirits, in which ingenious devices are so common.
    
      Before Richarson, J. at York, Spring Term, 1848.
    Indictment for illicit trading with Dick, the slave of-Bird.
    The device to detect Scates was the usual one, by sending Dick with a piece of marked pork to a certain barrel in which Scates was supposed to receive such wares as negroes might deposit: the evidence was as follows:
    McBrior — witness—Wilson and marked a piece of pork, got a patrol warrant and went to the defendant’s at 10 o’clock-at night; they gave the piece of pork to Dick to put in Scates’ barrel, side of the smoke house. Dick went to the smoke house and returned without the meat. Witness went and saw the meat in the barrel, went again and the meat was still there. They then went off where they could see the barrel. In the morning, defendant got some wood and then he looked about. Came out again and looked into the barrel, looked about and took the meat into his smoke house. They then got a search warrant and told defendant they would, search for pork. Defendant denied he had any but his own. But they found it, the very piece of meat, in his smoke house. Defendant said if he knew who had sent the boy, he would kill them. Twas Bird’s meat and boy Dick. It was a dark night. After seeing the pork twice, sent Dick home. Thinks there was a hasp and staple on the door. They told Bird of what had happened at defendant’s. He had not known that they had marked the meat. t
    t W. H. Carrol. — 8th January, they got the patrol warrant,' and Dick went to the smoke house and returned without the meat. Mr. Wilson went and looked at the barrel, and after-wards, they, Wilson, McBrior and witness retired within sight to watch. Defendant came out often, looked all around, and then he trotted round the house, went off once more, returned and took the meat. They told Bird of this, and then got a search warrant and found the meat, and defendant was arrested.— Defendant then said, if he knew who sent the boy he would kill him. It was about 10 o’clock at night. Dismissed Dick in a few minutes. Witness and Wilson stood behind one tree and looked.
    
      A. Hogue. — About 3 years ago, defendant talked with witness, but has forgot it. Some such words he spoke of what he could, rather than what he had done.
    The presiding Judge left the case entirely to the jury. Stated to them that by adjudged cases, such evidence was competent in law to be received in this case for what it was worth, as well as in cases against shop keepers under the Act of 1834, i. e. it was competent evidence. That the jury might or might not infer from the evidence the act of trading with Dick for pork. — Verdict, guilty.
    The defendant appealed, and moved the Court of Appeals for a new trial, on the following grounds:
    1st. Because there was no legal evidence of the defendant’s having traded and trafficked with the boy Dick.
    
      2d. Because his Honor permitted the State to go into evidence to show that the defendant had made certain declarations, indicating his guilt and his moral capacity for committing the crime for which he is now indicted, made in relation to other matters than that for which he is indicted.
    3d. Because his Honor ruled that the law of 1834, in relation to shop keepers, applied to the defendant, although he is not a shop keeper, and so stated to the jury when that point was called to his attention by .the defendant’s counsel.
    4th. Because his Honor said, in his charge to the jury, that if they believed that the boy Dick had gone with the meat to the defendant’s smoke house, under the orders of the party who had sent him, and returned without it, then they might infer an act of trading.
    5th. Because admitting every word the witnesses for the prosecution said was true, still the guilt of defendant was not established.
    6th. Because the statements made by the witnesses for the State, were absurd and improbable, and they contradicted each other in material and important particulars.
    
      7th. Because the verdict is without any legal evidence to SUpp0rt it, and contrary to law, and ought tobe set aside.
    
      Smith, for the motion.
   Richardson, J.

delivered the opinion of the Court.

The conviction of the defendant evidently arose, in a great degree, from the circumstantial facts of his conduct, preliminary to his taking the pork. Such conduct in connexion with the positive taking the pork deposited in the suspected barrel, after such vigilant caution, in looking around several times, as if guarding against being seen; then denying he had any pork, but his own ; when three witnesses had seen him take it into the smoke house; and his denunciation, when told of the plot to detect his cunning mode of trading illicitly, with the help of a barrel. These, when unexplained, betrayed the habitual trader.

As to the legal competency of such evidence ; it was all of the class of circumstantial evidence at common law, and although not conclusive of the charge, yet when no explanation appeared, warranted the finding of the jury, by the force of inferences, which when wholly unrebuted, are sometimes irresistible, especially in illicit trading and retailing spirits; in which ingenious devices are as common as in smuggling, or usury, and often betray the oifender. As to the evidence of the witness, Hogue, if it indicated guilt, at least it consisted of the defendant’s own voluntary declarations; and therefore, could not but be good against himself. Altogether the case made was exclusively for the jury to decide upon; and there being no alleviating circumstances, or character, to repel the idea of guilt, this Court cannot interfere. The motion is dismissed.

O’Neall, J. EvaNs, J. and Frost, J. concurred.

Motion refused.  