Holman v. Murdock

Smith, C. J.,

delivered the opinion of the court.

This suit was founded upon a hill single, payable to the order of J. W. Mallory, made by D. A. Holman, and by Mallory indorsed to the defendant in error. The defence relied on was, illegality in the consideration of the bill. The answer alleges that it was given for the price of a slave, sold by Mallory to Holman, introduced into this State as merchandise, in violation of the statute. There was a verdict for the plaintiff, and a motion for a new trial, on the ground that illegal evidence was admitted, and that the court refused to charge the jury as requested by the defendant. The motion was overruled, and the case is brought before us upon the bill of exceptions taken to the judgment on the motion.

No bill of exceptions was filed to the admission of the objectionable testimony, and counsel insist that the objections to it, now insisted upon, cannot be noticed.

This position is untenable. It appears, in the bill of exceptions tendered to the decision on the motion, that the defendant objected to the evidence and excepted upon its admission. Under similar circumstances, it is the settled practice of this court, in determining the propriety of the judgment on a motion for a new trial, to refer to, and consider exceptions to the evidence, thus stated to have been taken.

The only point about which there was any contest, was, whether the slave in question was not imported as merchandise, into this State. If introduced for that purpose, it is not pretended that the requisitions of the statute, in regard to the introduction, for traffic, of slaves into tbe State, were complied with. To repel the presumption arising from the fact of the sale, the plaintiff offered to prove the acts and declarations of Mallory, the party by whom said slave was brought to Mississippi, and subsequently sold to the defendant, Holman.

It appears that Mallory had, for some time, been engaged in the traffic of slaves, making Black Hawk, in Carroll county, the centre of his operations. That in the autumn of 1854, he left Mississippi, with the intention of buying negroes in Virginia, or elsewhere, and bringing them into this State; and that, in the spring of 1855, he returned to Black Hawk, bringing with him a number of slaves, including the one sold in October following to Holman.

The witnesses introduced to prove the acts and declarations of Mallory, testified that they “ heard Mallory say he had bought said negroes for his own use ; that he expected to be married, and intended to purchase and settle a farm in Carroll county. That they heard him make these declarations before leaving, and just on the eve of his departure in the fall of 1854, at which time he said he was going to purchase said negroes.” That he “ went to look at several places with, as he said, a view to purchase, and made frequent inquiry for land and plantations, saying he desired to purchase.” That during the spring and summer of 1855, applications were frequently made to him, by persons desirous of purchasing some of said negroes, and that he uniformly refused to sell, stating that he had bought them for his own use.

The defendant, Holman, objected to the admission of this testimony ; but it was allowed to go to the jury. And this action of the court is now assigned for error.

The rules of evidence, founded upon the convenience, interests, and necessities of. society, are adopted for practical purposes in the administration of justice, and should be applied so as to promote the ends for which they were designed. Hence, although as a general rule the acts or declarations of a party interested in the result of a suit cannot be given in evidence in his own favor, those very purposes and ends, required and led to the recognition of cer-' tain exceptions to that rule.

Expediency and public policy, which amount to necessity, are the ground upon which one of these exceptions is based. It is laid down that tbe statements and admissions of a party interested may be received in cases of extreme necessity, arising from tbe particular nature of the subject of inquiry, which renders it exceedingly improbable that any better evidence can exist, whether that improbability arise from the confined nature of the transaction, or from the generality of the interest which is equally likely to affect all other witnesses. The law, it is said, is jealous of any extension of the rule, and requires that “the necessity upon which the exception is justified” must result not from the accidental failure of evidence in a particular and isolated case, but it must be general in its nature, embracing a large and definite class of cases, and it must arise in the usual and natural course of human'affairs. 1 Stark. Ev. 182.

In the case before us the quo animo characterized the act of importation. The violation of the statute was complete, if the purpose of the importer was to sell, so soon as the slaves were brought within the borders of the State. A subsequent sale would be a consummation of the illegal purpose ; and in all such cases would be prima facie evidence of such intent. Every citizen may lawfully introduce slaves, for his own use, not convicted of a felony in the place whence imported, without procuring the certificate required by the statute. And it may be said, that from the nature of the transaction, it is highly improbable that a party in the act of importing slaves for his own use could produce any other evidence except his own declarations to prove his intention. And certainly, according to the literal terms of the exception, the declarations of a party thus situated, contemporaneous with the act of importation, would be evidence in his favor. But every one by procuring the certificate, has it in his power to avoid being placed in this dilemma. And as all parties intending a violation of the statute could very easily make evidence for themselves, and thus defeat the policy of the law, such declarations should be admitted with the greatest caution; and only where there is no ground to suspect their sincerity.

According to this view, the-statements of Mallory, made in 1854, that he expected to be married, and that he intended to buy negroes in "Virginia and bring them to Mississippi for the purpose of cultivating a plantation which he expected to purchase, should have been ruled out. To hold-that these declarations, made months before the negroes were purchased or brought into the State, were evidence for the plaintiffs, would, in our opinion, be an extension of the rule not sanctioned by authority, nor warranted by public policy.

But it is said that these declarations were admissible, as parts of the res gestee, under another exception to the rule.

The surrounding circumstances constituting the res gestee may always, in connection with the main fact, be shown to the jury; but the impracticability of laying down any definite rule by which to determine what declarations and circumstances properly constitute the res gestae, is admitted. The question of admissibility is, of course, addressed to the sound discretion of the court, who are to determine it according to the degree of relation which the circumstances bear to the main fact, or the subject of inquiry. The principal points to be considered, says Greenleaf, are whether the declarations and circumstances offered in proof were contemporaneous with the main fact under consideration, and whether they were so connected with it as to illustrate its character. ' 1 Greenl. Ev. sec. 108. In Enos v. Tuttle, 3 Conn. Rep. 250, it was said, that to be a part of the res gestee, the declarations “must have been made at the time of the act done, which they are supposed to characterize, and have been well calculated to unfold the nature and quality of the facts they were intended to explain, and so to harmonize with them as obviously to constitute one transaction.”

But it is not essential, in order to warrant such evidence, that the act done, with which the declaration is connected, should be a single effort or a positive transaction. It may be continuous for a series of years, and be of a negative or passive character, as the possession of real estate continued for a long period of time, or a, residence for years. 3 Phill. Ev. 166, note.

If we apply these principles to the question before us, or consider it with reference to the grounds upon which they are founded, it is impossible to justify the admission of these declarations.

The act of importation was the principal fact, which it is sought to characterize by the declarations. It was a single act, not continuous for a length of time, but confined to a single point. The declarations were not contemporaneous, and there was no such natural connection or dependence between them and the act done, as to make them necessarily explanatory of its character. Any declaration or circumstance, which would not be evidence, no matter by whom proved, could be received in evidence as part of the res gestee. Let it be conceded that Mallory’s declarations were proof of his intention in the autumn of 1854, that when he then left Mississippi it was his intention to buy negroes, carry them back to Carroll county, and settle them upon a plantation which he expected to purchase; would the clear proof of these facts, by competent witnesses, be any evidence that a slave brought by him into the State of Mississippi six months afterwards and sold, was not imported as merchandise? It would not. And if not, there can be no pretence for saying that his declarations were properly admitted.

To render this still more certain, let the position of the parties be changed. Let it be supposed that Mallory was under prosecution for having illegally imported, as merchandise, this very slave, it would certainly not be contended that his declaration, before leaving Mississippi, in 1854, to the effect that he intended to buy negroes, and bring them back for sale, would, on the trial, be evidence of the illegal introduction of the said slave.

Several witnesses (members of the bar) were called by the plaintiff, and interrogated as to the time when they discovered that the Act of 1822, in reference to the importation, as merchandise, and sale of slaves, was in force. In answer to which, they testified that they knew not that said act was in force until the publication of the opinion of this court, in the case of Deans v. McLendon, 1 George, 343, that it took the profession by surprise, and that it was generally understood in that region of country, among the members of the bar and the people, that it was not illegal to introduce slaves for sale without a certificate of character. The question and the testimony, delivered in response to it, were excepted to; but the exception was overruled, and the testimony was allowed to go to the jury, as tending to prove circumstances from which the jury might infer that the declarations of Mallory, above referred to, were made with sincerity, and not from a premeditated design of evading the law.

It is very clear that this testimony was incompetent.

Proof that a previous statute, which had been in force for eight years, had escaped the attention of the witnesses, and that they, with the inhabitants of the county, believed that the importation of uncertificated slaves, for merchandise, ivas not illegal, was certainly not a circumstance, from which the inference could legally be drawn by the jury, that Mallory entertained the same opinion, much less in opposition to the legal presumption, that every man is acquainted with the law, that he was ignorant of a particular statute.

Judgment reversed, and cause remanded for a new trial.