#### SHUTTLEWORTH *vs.*THE STATE.

[INDICTMENT FOR TRADING WITII SLAVE.]

1. *IVhat constitutes offense of receiving article or commodity from slave.-*— Under an indictment founded on section 3285 of the Code, a conviction may be bad on proof that the prisoner received from the slave named in the indictment “ a black bottle filled with whiskey,” although the whiskey may have been “ the controlling cause of the reception of ihe bottle nor is malice an ingredient of the offense.

*4162. *Evidence in mitigation or aggravation.*— In adjusting the punishment of a misdemeanor, where the amount of the finéis not fixed by a definite standard, tiie jury may always look to “ the surrounding circumstances as proved, in mitigation or aggravation of the damages.”

From the Circuit Court of Bibb.

Tried before the Hon. Porter King.

The indictment in this ease charged, that the prisoner, Philip Shuttleworth, “ received of a slave named Sandy, belonging to Wesley Shuttleworth, one black bottle, and one quart of whiskey, without first obtaining tbe consent of the master, owner, or overseer of said slave, verbally or in writing, expressing the articles permitted to be so received from said slave.” “It was proved on the trial,” as the bill of exceptions states, “that within twelve months before tbe finding of the indictment, and in said county, the'defendant received from the slavo named in the indictment, who was proved to be the property of the person named in the indictment, a black bottle filled with whiskey; and that this occurred on Sunday, at a spring about a half-mile from a church where preaching was then going on, and persons were passing between the church and the spring. The court charged the jury, ‘that it ivas no offense to receive the whiskey, but, if they believed the evidence, and that the bottle, disconnected from the whiskey, was an article or commodity, they would find the defendant guilty’; and ‘ that they would look to the surrounding circumstances as proved, in mitigation or aggravation of the damages.’ The defendant excepted to each of these charges, and then requested the court to instruct the jury, ‘ that if they believed the whiskey was in the bottle at the time of its reception by the defendant, and was the article most earnestly wanted by the defendant, then be could not be convicted under this indictment;’ also, ‘ that before they could find the defendant guilty, they must believe from the evidence that tbe bottle was received .as an article or commodity disconnected from the whiskey, and that the whiskey was not the controlling cause of the reception of the bottle ;’ also, ‘ that the reception of the bottle by the defendant must be a malicious *417reception, before they could find bina guilty.’ The court refused each of these charges, and the defendant excepted to their refusal.”

¥m. R. Smith, for the prisoner.

M. A. Baldwin, Attorney-General, *contra.*

STONE, J.

The section of the Code, under which the plaintiff in error was indicted, is in the following language : “ § 3285. — Any person who sells to, or buys or receives from any slave, any other article or commodity of any kind or description, without the consent of the master, owner, or overseer of such slave, verbally or in writing, expressing the articles permitted to be sold' to, or bought or received from such slave, first obtained, must, on conviction, be fined in not less than ten or more than two hundred dollars, and may be imprisoned not more than six months.” The articles or commodities which are excluded from the operation of this section by the word other, are vinous and spirituous liquors, which are the subject of section 3283 of the Code. The indictment in this ease is for receiving from a slave, without the consent of the master, owner or overseer, one black bottle and one quart of whiskey. The whiskey is a commodity for which this section makes no provision, and the defendant was convicted for receiving the bottle.

The section wo are considering constitutes three several acts, misdemeanors, viz., selling to, buying from, and receiving from a slave, any article or commodity, &c. The word *receive,*we apprehend, was inserted, to obviate the difficulty of proving, in many eases, an actual sale. It is much more comprehensive than the word *sale.*Its meaning, in this section, is, “to take, as a thing offered; to accept.”

The words, *article*and *commodity,*are used in this section, mainly, in the same sense. They at least embrace most moveable things, wdiich can become the subject of commerce between white persons and slaves. A black bottle comes clearly within this definition.

The question may arise, will every act of receiving from *418a slave, without the consent of the master, owner, or overseer, any commodity which is an article of commerce, amount to an infraction of section 3285 of the Code ? If not, what rule can be prescribed for determining-when a case is within, and when without the statute? We will endeavor to answer these questions, so far as the wants of this record seem to render an answer necessary.

We hold, then, that whenever the proof satisfies the jury that an article or commodity of value has been received from a slave, and it does not appear that the consent of the master, owner or overseer had been given, a case is made which is, *prima facie,*within the penal provisions of the statute. This construction is necessary, to give to the statute the wholesome operation it was designed to have, and to arrest illicit commerce with slaves.

On the other hand, there are acts of mere courtesy, or kindness, which may be received at the hands of a slave, which are not within the spirit of the enactment, and are not covered by its provisions. We instance, a vessel in which water is handed; in such case, the surrounding circumstances repel all imputation of criminality. Many other cases may be supposed, which we need not particularize.

In the present case, the receipt of the bottle, under the circumstances disclosed in the testimony, constituted a *prima-facie*case of guilt; and the fact that the bottle, at the time, was filled with a commodity for which the statute makes no provision, does not, *per se,*impair the force of the act of receiving the bottle. It still remained a commodity, and there is nothing in the record which brings this case within the exception above noted.

Tho affirmative charge of th# court is in accordance with these views. The first and second charges asked by defendant, should not have been given. The act of receiving the bottle could not be rendered harmless, by the fact that the commodity with which the bottle was filled was more earnestly wanted than the bottle, or a more controlling cause of the reception. Neither is malice an ingredient of this statutory misdemeanor.

[2.] In misdemeanors, the punishment of which is not *419fixed by a definite standard, the jury should always have reference to the surrounding circumstances, in adjusting the punishment. — See Rosenbaum v. The State, 88 Ala. 354. ¥e find nothing in this record to exempt this case from the general rule. The record does not purport to set out all the evidence; and if necessary, we would presume the case furnished surroundings, which shed light on the degree of criminality. If the defendant apprehended that the jury might give weight to any immaterial circumstance, it was his privilege to request an explanatory charge. He did not do so.

We find no error in the record, and the judgment of the circuit court is affirmed.