
    Jesse Jolly v. The State of Mississippi.
    On the trial of a man, under the statute for selling liquors to a slave without permission of his master, it was in proof that several persons suspecting the defendant of a violation of the statute, went in the night near to his house, and sent a negro belonging to one of them with money and a jug, and told him to get some whiskey, and the defendant sold him the whiskey; upon which the court instructed the jury, “ that permission to the slave to buy liquor of any one, did not satisfy the statute, which required permission to the seller; ” this instruction was held to be erroneous, as a permission to the slave to buy implied a permission to the vender to sell; the facts should have been left to the jury to say, whether his master gave the slave permission to buy, or whether the slave was sent to ascertain and fix the fact that the vendor would sell without permission, and did so sell; if the jury believe the former, they should find for the defendant; if the latter, against him.
    The master’s delivery of money to a slave, with instructions to buy whiskey with it from a person whom the master suspects of having sold whiskey in violation of the statute to his slaves, for the purpose of detecting the offender if guilty, does not excuse the sale to the slave of whiskey for such money; it is not such permission to the slave to purchase as the statute contemplates.
    In error from the circuit court of Marshall county; Hon. Hugh R. Miller, judge.
    Jesse Jolly was indicted for having, on the 7th of June, 1846, sold “ spirituous liquor to a certain slave named John; without permission of his master, mistress, owner or overseer.”
    A trial was had and the prisoner was found guilty; he moved for a new trial which was refused, and he filed a bill of exceptions, from which these facts appear.
    Anthony Armstead a witness for the state, testified that in November, 1845, suspecting the defendant of unlawful dealing with slaves, for the purpose of detecting him, he and several others went at night to the house of the defendant in Marshall county, taking with them the negro man John, who belonged to one of the party, and some spun thread and other articles which they concealed near by in a wagon body; they also concealed themselves. The negro roused the defendant from his sleep, and proposed to trade with him for the liquor; but the defendant refused to trade for the articles, Jest it should bring him into trouble with the neighbors, but told him he would sell it to him for money; upon which John went off got the money from one of the party in the presence of his master; and was told to take the jug and get some whiskey in it; the slave did so and returned with the whiskey. Another witness testified to the same effect. Upon which the district attorney asked the court to instruct the jury that “permission to the slave to buy spirituous liquors of any one, will not satisfy the statute; that requires permission to be given to the seller thereof to make the act justifiable in the eyes of the law. That the owner of a slave being willing for the purpose of detection for his slave to buy spirituous liquor of any one, will not in the eye of the law justify that one in selling to such slave; that if the jury believe from the testimony that the defendant sold the liquor to the slave without permission of the master, mistress, owner or overseer given to the defendant and not to the slave, they must find the prisoner guilty.” These charges were given and excepted to by the defendant who asked the court to instruct the jury, that if they “believed from the evidence that the slave was furnished with' the money to purchase the liquor by his master, owner^or overseer, and was instructed by 'them or either, to purchase the liquor from the defendant, in that case the sale to the slave was not a violation of the statute.”' This charge was refused.
    The defendant brought the case to this court by writ of error.
    
      D. S. Jennings, for plaintiff in error.
    1, The court erred in giving the charges which they gave, and in refusing the one which they refused.
    2. The court also erred in refusing to grant a new trial.
    There are but two questions to be decided by the court. The first question which I shall-raise is, was there a sale to the slave within the true intent and meaning of the act of 1842? I maintain that there was not. The testimony shews that the purchase was made by the slave as the agent of the overseer, to whom consequently the sale was made, any opinion that the plaintiif in error may have entertained to the contrary, notwithstanding. The word “ sale,” has a fixed technical signification, and is thus defined: “ A sale or exchange is a transmutation of ■property from one man to another in consideration of some price or recompense in value.” Chity on Con. 107, 108; Shep. Touch. 218. A slave may be an agent. Story on Agency, 9; 9 Yerg. R. 205, 206. And the slave in this case purchased in that character. It is not material whether he disclosed his agency to the vendor, or not, in determining the question to whom the sale, or in other words, the transmutation of property was made. Even in determining the recourse of the vendor against the principal for the price or purchase-money, such concealment has been decided to be of no importance. It is decided that “ If a person supposing at the time of the contract that he is dealing with a principal, afterwards discovers the real principal, he may recover the amount of him, although in the mean time, he may have detected the agent.” Story on Agency, 291 (in note.) 9 B. & Ores. 78.
    The other question supposes the one which I have discussed to be decided affirmatively. It is, was the sale “ without the permission of the master, mistress, owner, or overseer ” and within the prohibition of the statute on which the indictment is founded? The facts of the case, make it necessary that we should determine the meaning, which the legislature meant to attach to the word “permission” in the act of 1842. As the word is not a technical one, its acceptation in common parlance, must determine its meaning in the act. It is thus defined by Webster (I mean the verb) — To allow, to grant leave or liberty, by express consent. To allow by silent consent, or by not prohibiting. To suffer without giving express authority. Johnson's definition is the same substantially. It resolves itself into this proposition. That the sale, to constitute a violation of the act, must be against the will, in invito domino, of the master, mistress, owner and overseer, or which is but another way of staling the same proposition, it must be without the assent of any one of those persons mentioned in the act. In a case where either of these persons consented, assented to or permitted the sale, the act is not violated ; and this is so, let their consent, assent or permission have been given for any reason whatsoever. Meigs’s Rep. 84.
    
      John D. Freeman, attorney-general, for the state.
   Mr. Justice Clayton

delivered the opinion of the court.

This is an indictment framed upon the act of 1842, made to prevent the selling of vinous or spirituous liquors to a slave, without permission of his master. The defendant was found guilty in the court below, and the case comes by writ of error to this court.

The proof was that several persons, suspecting the defendant of a violation of this statute, went in the night, near to his house, and sent a negro belonging to one of them with money and a jug, and told him to get some whiskey. The witnesses were concealed. Defendant sold the whiskey to the negro.

Upon this state of facts, the court charged the jury, “ that permission to the slave to buy spirituous liquors of any one, will not satisfy the statute, which requires permission to be given to the seller. That the owner of the slave being willing, for the purpose of detection, for his slave to buy spirituous liquor of any one, will not justify the sale to such slave; the permission must be given to the seller.” The defendant asked the court to charge the jury, “that if the slave was furnished with the money to purchase the liquor by his master, and was instructed to buy the liquor from the defendant, then the sale thereof by the defendant, does not make him guilty.” This charge the court refused.

The first part of the charge given by the court, lays down the law too broadly, even with the qualification which seems to be contained in the other part. A permission to the slave to buy, in itself implies a permission to the vendor to sell.

But in this case the question arises, was there, a permission given to the slave to buy, or was it merely an experiment to see if the defendant would sell without, permission ? In other words, was it not a plan to detect the defendant in a violation of the law, by seeing him sell spirituous liquor without a permission to the slave to buy ? The true point is, whether the master was willing for the slave to buy the liquor of the defendant, and gave him permission to do so. This point is for the determination of the jury. If from the evidence they should be of opinion, that permission was given to the slave by the master, mistress, owner or overseer to buy the liquor, then the offence is not committed, though the permission were given to the slave, and not to the seller. But if they should be of opinion, that permission was not given to buy, but that the slave was sent to ascertain and fix the fact, that the defendant would sell without permission, and the sale took place under these circumstances, then the offence would be consummated.

In the case of The State v. Anone, 2 Nott & M‘Cord, 30, the law is thus laid down upon a similar statute: “It has long been decided, that the master’s delivery of any article to a' slave, and standing by for the purpose of detecting an offender, who may trade with the slave, does not legalize the trading.” “ When the owner goes in order to detect, and for that purpose merely, eyes the traffic carried on, giving to the offender no real or apparent intimation of assent, there can be no inference that he assents to the, traffic ; and the policy of the law sanctions a practice so essential to the exposure of skilful traders.”

The object of the' statute under consideration cannot be mistaken. It is to prevent the demoralizing influence of drunkenness, and its attendant vices, upon the slaves which constitute so large a portion of our population. As one of the guards for the security and well-being of society, a trafile in this article with slaves, is prohibited unless with the consent of the master. It is a trafile which it is hard to detect, and it would be singular, if a resort to almost the only means of detection should have the effect to legalize the transaction. Such traffic without the consent of the master, mistress, owner, or overseer, is a breach of the statute; and the consent must be to a sale of the liquors, not merely to an experiment to detect a violation of the law.

For the error in the charge of the court below, the judgment will be reversed, and a new trial granted in accordance with the principles here laid down.

Cause remanded and new trial granted.  