Dearing v. Moore , 26 Ala. 586 ( 1855 )

RICE, J.

—In an action of trespass for the battery of a slave, the jury arc not confined to the actual injury sustained by the master, but may give vindictive damages. The master has the right to prove circumstances of aggravation. The defendant has the right to prove any matter which constitutes a bar to the action, and also any matter which the law permits the jury to consider in mitigation of damages.—Wheat v. Lowe, 7 Ala. R. 349; Gillian v. Senter, 9 Ala. R. 395; Mitchell v. Billingsley, 17 Ala. R. 391; Handy v. Johnson, 5 Maryland R. 459.

The plaintiff, in the present case, did not confine his evidence to the mere fact that the defendant shot his slave : he went beyond this, and gave in evidence circumstances which, if unexplained, might well have been regarded as matters of aggravation. Amongst other things, he proved by his witness Williams, that defendant kept a pack of dogs trained to run slaves ; that defendant and one Robinson, with these dogs, were chasing plaintiff’s slave (as a runaway); that the witness heard the report of a gun, or pistol, in the direction the dogs were trailing ; that when he got to the fence of a certain field, the defendant came to him from the swamp on the opposite side of the field, “ and told him he came up with the negro in the field on horseback, and that the negro turned on him with a largo stick, and that he retreated to keep out of the way of said negro, who said he would die before he would be taken ; that defendant further told him, he went to said Robinson, and got his pistol, and pursued the negro to the swamp, and came up near to him, and shot him just as the negro was ■turning on him.”

After the plaintiff had adduced this evidencé, ánd résted bis ease, defendant “introduced the said Robinson, who stated that he came to the said field, while the said slave was pursuing the defendant with a large stick ; that when the slave saw him, he turned and fled towards the swamp. Witness was proceeding to state what defendant told witness as he started to pursue the said slave to the swamp, a short time before the slave was shot. Thereupon the plaintiff objected to his stating what defendant so told him, but the court overruled the objection ; to which ruling of the court the plaintiff excepted. Witness thereupon stated, that defendant told him not to follow the slave into the swamp, that he said he would not be taken, that he would die before he would be taken ; to which declarations of defendant plaintiff objected, and his objection was overruled, and plaintiff excepted.”

If these declarations of the defendant were mere naked declarations, they were improperly admitted ; but if they formed part of the res gestee, they were properly received. Declarations made by the actor at the time an act is done, and which explain the motive, design, or intent of its performance, and so harmonize with it as obviously to constitute one transaction, may be given in evidence as part of the res gestee, whenever the nature of the act becomes a material question.—2 Phillips on Ev. (edition of 1839) pp. 585 to 600; Pitts v. Burroughs, 6 Ala. R. 733; Enos v. Tuttle, 3 Conn. R. 250.

It was not unlawful in defendant, after the manifestation of dire rebellion on the part of the runaway slave, to get a pistol and pursue him, for the purpose of apprehending him. But the plaintiff proved this act of getting the pistol and pursuing the slave to the swamp, and' that it occurred a very short time before the defendant shot the slave. The nature of this act — the motive, or intent for thus getting the pistol and pursuing the slave — thus became a material inquiry in the cause ; for, if that act were left unexplained, it might be used and treated as matter in aggravation of damages, because it might authorize the inference that the shooting of the slave, which occurred very soon afterwards, was a premeditated, cruel, and unnecessary act, unrelieved by the existence of a good motive, or other palliating circumstance. It was, therefore, important to defendant to repel any such inference ; and the authorities make it clear, that his declarations at the time he got the pistol from Robinson and pursued the slave, in explanation thereof, were competent evidence as part of the res gestee.—2 Phillips on Ev., supra; Yarborough v. Moss, 9 Ala. R. 382; Pitts v. Burroughs, 6 Ala. R. 733; Williams v. Shackelford, 16 Ala. R. 318; 1 Greenl. Ev. §§ 108 to 110; Allen v. Duncan, 11 Pick. R. 308; Rice v. Bancroft, 11 Pick. R. 469.

There is no error in the ruling of the court below, and its judgment is affirmed.