Tucker v. State , 24 Ala. 77 ( 1854 )

CHILTON, C. J.

The only question presented by thé record in this case is, whether upon an indictment for vending spirituous liquors to a free person of color, under the statute, it is competent for the State to prove the status of the person to whom it was sold by showing that he was a man of color, and for more than twenty years had acted and been esteemed in the community as a free person; and that according to hearsay and general reputation he was a free person of color.

We are not called upon to express any opinion as to whether, in a direct proceeding for freedom, hearsay or general reputation could be properly received: that is not the case before us. The inquiry as to the condition of the party to whom the spirituous liquors were sold, arises collaterally, and does not call for the same strictness of proof, perhaps, as if the question of freedom were directly involved.

We agree with Mr. Attorney General, that, from the necessity of the case, hearsay evidence or reputation as to the status of the party must be received in prosecutions of this kind ; for, in most eases, it would be impossible to adduce other evidence. If the State must send out in search of documentary evidence of manumission, or is required to trace the genealogy of the party, who may have been born in a distant country, it is manifest that the statute alleged to have been violated would, in a great measure, be rendered nugatory.

The proof shows, prima facie, that the person to whom the spirituous liquors were sold, was a free person of color : he was generally reported to be such — had acted and been recognized as such for more than twenty years in the community, and the selling of liquors to him fell ostensibly within the mischief intended to be remedied by the statute. —7 B. Monroe, 478. Neither do we see any injustice or hardship, which can result to defendants from the practical operation of the rule we have laid down ; for if they sell spirituous liquors to colored persons, they must be aware that they either sell to slaves, and thereby commit a much higher offence than the one now under consideration, or that they sell to free persons of color.

The court is of opinion that the proof was properly admitted, and the judgment of conviction must be affirmed.