
    Dean v. The Commonwealth.
    (Absent Leigh, Baker, Johnston and Taliaferro, J’s.)
    1847. June Term.
    
    1. Persons having less than one fourth of negro blood in their veins, are competent witnesses, on the trial of a white man.
    2. The fact that a witness is of negro descent, though not so near as to render him incompetent as a witness, is not competent evidence to impeach his credibility.
    3. The offer of the prisoner to bribe the person who has him in custody, to permit him to escape, and his attempts to escape, may be given in evidence against him; though the offer and the attempts wrere made when the prisoner had been committed for a different offence from that for which he was tried; both offences being founded on the same fact.
    The prisoner was indicted in the Circuit Court of Culpeper for larceny in stealing the goods of William and John Ross. On the trial the Commonwealth introduced these persons as witnesses, who were objected to by the prisoner as incompetent, on the ground that they were mulattoes. A number of witnesses were introduced as to this fact, both by the prisoner and the Commonwealth ; and from the testimony it appeared certainly, that they had less than one fourth of negro blood. Their grandfather, David Ross, who was spoken of as a respectable man, though probably a mulatto, was a soldier in the revolution and died in the service. The evidence as to the grandmother was contradictory; though she was probably white: The mother was so certainly. Upon the evidence, the Court below was of opinion that the witnesses were not incompetent under the Act of Assembly, in consequence of the impurity of blood, and overruled the objection ; and the prisoner excepted to the opinion of the Court. At a subsequent stage of the trial the prisoner, in order to impeach the credibility of John and William Ross as witnesses, claimed to introduce before the jury the evidence which had been submitted by him to the Court on the question of their competency; but the Court being of opinion that such testimony for that purpose would be improPer? refused to permit it to go to the jury ; and the prisoner again excepted. Both these points were embraced in one exception.
    It further appeared in evidence that the justice before whom the prisoner was brought when he was arrested, after hearing the evidence, committed him for the of-fence of receiving stolen goods from a negro, knowing them to be stolen ; and ordered a Court to be summoned for the examination of the prisoner on that charge. And whilst the prisoner was in custody under that charge, he offered to one of the men who had him in custody a pair of boots to let him escape; and this proposition having been rejected, he made two attempts to escape before his arrival at the jail. Afterwards the attorney for the Commonwealth being satisfied that the justice had misconceived the nature of the prisoner’s of-fence, and that it was in fact larceny, abandoned that prosecution and had the prisoner taken up again upon a charge of larceny. And on the trial introduced evidence to prove the attempt of the prisoner to bribe one of the persons who had him in custody to permit him to escape ; and also his attempts to escape. To the introduction of this testimony the prisoner objected, on the ground that these facts occurred whilst he was in custody under the charge of receiving stolen goods. But the Court overruled the objection, because it was proved that the larceny charged against the prisoner in the indictment consisted in his stealing the same goods from John and William Ross, which the justice who committed him in the first instance supposed amounted to the crime of receiving stolen goods from a negro, knowing them to be stolen ; and, therefore, whilst the two prosecutions were of a different character, yet the of-fence to which each related was one and the same. To this opinion of the Court the prisoner again excepted.
    
      The jury found the prisoner guilty of petty larceny: and thereupon he moved the Court for a new trial, which was refused; and on the motion of the prisoner, the facts proved on the trial were spread upon the record; and the prisoner again excepted. This bill of exceptions presents simply a question of fact.
    On the petition of the prisoner, this Court awarded a writ of error to the judgment of the Court below.
    
      Barbour and H. C. Cabell, for the prisoner.
    
      The Attorney General, for the Commonwealth.
   Thompson, J.

delivered the judgment of the Court.

On the first question presented by the first bill of exceptions, the Court are unanimously of opinion there is no error.

On the second question in the same bill of exceptions, a large majority of the Court are of the same opinion: dissentiente Robertson, Scarburgh and Thompson.

On the second bill of exceptions, the Court are unanimously of opinion there is no error.

On the third, which presents the question of the sufficiency of the evidence to support the verdict, the Court were divided ; but a majority of the Court are for awarding a new trial; a part, because of the insufficiency of the evidence; and Judges Robertson, Scarburgh and Thompson, because of the error committed by the Court in excluding the evidence of negro blood, to impeach the credit of John and William Ross, mentioned in the second bill of exceptions.

From this judgment, Judges Smith, Brown, Fry and Gholson dissent, they being of opinion there is no error in the judgment of the Court below.  