#### *The Commonwealth v. Connor.

December, 1834.

Criminal Law — Suffering Unlawful Assembly of Slaves —Burden of Proof as to Consent of Owners,* — Upon tbe trial of a presentment on the statute 1 Rev. Code, ch. Ill, § 13, against the occupier of a tenement in 3ST. for knowingly permitting more than 5 slaves to be and remain at one time on his lot or tenement, without consent of the owners, — if the prosecutor prove the assemblage of more than 5 slaves, the onus probandi lies on the defendant, to shew the consent of the owners.

Case adjourned from the circuit superiour court of Norfolk borough. The defendant was presented, under the thirteenth section of the statute concerning slaves, free negroes and mulattoes, 1 Rev. Code, ch. Ill, $ 13, p. 424. ‘ ‘for knowingly permitting, during the last month, fifteen negroes other than his own, to be and remain at one time on his lot or tenement, in the borough of Norfolk, without the consent of the owners, contrary to the statute in such case made and provided.” On the trial, the common - wealth introduced a witness, who proved, that, at various times, almost every day between the first day of January preceding, and the date of the presentment, the defendant knowingly permitted large numbers of slaves, frequently upwards of twenty, other than his own, to be and remain at one time in the defendant’s shop in Norfolk ; but the witness could not prove any particular number upon any particular day, and did not know, whether the owner or overseers of the slaves permitted them to be there. The defendant’s counsel contended, that to sustain the prosecution, it was incumbent upon the attorney for the commonwealth, to prove that the slaves were at the defendant’s shop, without the consent of their owners or overseers; and that it was necessary, to prevent the infliction of two or more fines for the same offence, that the presentment should allege such assemblage of negroes to have occurred upon some particular day; or, at least, that the witness should prove some day on which the offence was committed. Whereupon, with the consent of the defendant, the judge adjour^-Sd to this court, the question, “Whether, to maintain this prosecution, it is incumbent on the commonwealth *to prove, that the slaves remained at the defendant’s shop without the consent of the owners or overseers?”

*

Criminal Law — Selling Diseased Meat — Presumption as to Unlawfulness of Sale. — in Seibright v. State, 2 W. Va. 591, the third headnote reads: “Where a party is charged in an indictment, with selling diseased and corrupted meat, without making the same known to the buyer, it is sufficient if it be proven that he did knowingly sell such meat in the market; the presumption of the law being that the sale was unlawful. And it is incumbent on the defendant, to escape the penalty of the law, to prove that at the time he made the sale he disclosed to the buyer that the meat was corrupted or unsound.” Maxwell , J., in delivering his opinion, cites the principal case (p. 596) to sustain the proposition.

BAKER, J.,

delivered the resolution of the court. This court is of opinion, and doth decide, that in a prosecution under the statute referred to, where the commonwealth establishes by proof an assemblage of more than five slaves, not belonging to the defendant, on his lot or tenement at any one time, it should be presumed, that such assemblage is unlawful; and that, in such case, it is incumbent on the defendant, in order to protect himself against the penalty of the law, to shew that the slaves were on his lot or tenement with thé' consent of the owners or overseers: Which is ordered to be certified &c.