#### Ambrose Nelson v. Baird Evans.

From Rockingham.

In slander, the Defendant may prove a general report of the truth of the words spoken, in mitigation of damages, but not in justification • A record of the conviction of the slave, (the master being notified, and defending him,) is not evidence against the master, unless the latter is charged as an accessory, and then only *ex necessitate.*

This was an action on the Case for verbal Slander. The words charged in the declaration to have been spoken were, that the Plaintiff had broken the Defendant’ house and stolen bis gun, or that lie (the Plaintiff) had caused Iiis negVo slave to do it. The Defendant pleaded not guilty, and a justification.

On the trial, before DaNIei Judge, the Plaintiff having proved his Case, the Defendant’s Counsel offered to ■shew, that, before the publication of the slander, a gen-*10oral opinion and belief prevailed in the neighbourhood,, ^,e had caused his negro slave to commit the offence attributed to him. This evidence was oppo*sed;*but the presiding Judge received it as proper for the consideration of the Jury, not to establish the justification, but to mitigate the damages.

The Defendant then offered to give in evidence, a record of the conviction of the negro slave, for breaking the house ami stealing the gun, hut the Judge rejected it. The Defendant then proved that his house was broken in the month of July, while his family was absent, and that in June preceding, the Plaintiff was seen near his house, and the witness was about to state circumstances tending to shew an illicit intercourse between tiie Plaintiff and the wife of the Defendant, when the Judge stopped the evidence, as irrelevant and improper.

Witnesses- having stated a general opinion, that th e Plaintiff had caused the gun to be taken, in order to prevent the Defendant from killing him, the Defendant’s Counsel proposed to ask, if it was not a part of the general rumour, that the illicit connection above mentioned existed, and was the motive for taking the gun. The Judge refused to permit the question to be *asked;*and a verdict being found for the Plaintiff, and a new trial, *on*the ground of error in the Judge, being refused, and Judgment rendered for the Plaintiff, the Defendant appealed.

*Murphey*appeared for the Plaintiff. The Cause was submitted.

Ham, Judge.

I think the Judge was right in permitting the Defendant to prove the reports in the neighborhood, of Defendant’s guilt, in mitigation of damages, but not in support of the plea of justification. (See the cases coileaied in *Norris's Peake*on this subject, 47"8.) The law considers the Defendant less guilty, but not justified, when reports are publicly circulated, imputing the charge complained of to the Plaintiff. I also think *11the Judge was right in rejecting the record of the slave’s conviction, as being irrelevant, unless it was proved that the slave committed the offence by the master’s direction, or with his connivance. That conviction proved nothing of itself; it might, probably, have given rise’ to the reports before noticed, of which the Court suffered the Defendant to have tlie benefit, in mitigation of damages, but it was not authority for such reports, and of 0001*30 could not be a justification.

The same remark may be made to the third objection to the Judge’s charge. The illicit commerce between the Plaintiff and the wife of the Defendant, might have been the origin of the reports in circulation, of which the Defendant had been allowed the benefit, in mitigation of damages ; but it could not be a justification of them, nor of the charge, made in this suit, against the Defendant.

Henderson *Judge.*

This case presents a question never agitated before in this country, so far as I know. In England, it could not arise, owing to circumstances peculiar to this country. The charge made by the Defendant is, that the Plaintiff had caused his, the Plaintiff’s negro, to steal tiie Defendant’s gun. The Defend.ant, after having the benefit of showing that such were the reports in the neighborhood, by way' of mitigation of damages, offered in evidence a record of the conviction of the negro slave for stealing the gun, and notice to the Plaintiff, his master, to appear and defend him, and offered to show that he did appear and assist in his de-fence. This was rejected by the Judge, on the ground, that, if received, it could only go in mitigation of damages ; • and that he had already had the benefit of it, through the medium of the report.

I am disposed to concur with the Judge, but not for •the reasons given by him : for *non constat,*the evidence offered, that the negro stole his gun, was believed. The *12'Defendant might wish to show that the report was true *!1 í)arf’ w*h that the negro did steal the gun, and thereby strengthen the whole report, by shewing that part, of it was true; and, if admissable at all, it might be received to prove a part of his justification, and the residue, to wit, that the Plaintiff caused the negro to steal the gun, he might prove by other testimony. I am disposed to think the law is so, although ruled otherwise by Judge Chase, on the trial of Callender. But, putting this out of the case; and the point, which might he raised, that it was *res inter alios acta,*I am inclined to think that it is inadmissible, because the conviction of the slave might have arisen from evidence wholly incompetent against the master, a free white man. If it should be admissible, it is making *that*evidence indirectly, which is not so directly, to wit, *the*testimony of ne-groes and mulatloes within the fourth degree. I am inclined to think, therefore, that the record ought not to have been received.

Should it be asked, if this record is inadmissible to prove the guilt of the negro, what is to be done with ac-cessorial offences of white persons in such cases ? It is answered, that if the record of the conviction is a *sine qua non*to the conviction of the principal, the record must be received. It is the best which the State can do; but independently of it, full proof of the principal fact must be made, and practice must yield to principle, for the *conviction*of the principal is not essential to tiie guilt of the accessory. The accessory *may*be guilty, although the principal is acquitted. The conviction of the principal is required as a shield for the accessory, upon the principle, that he who is charged with a crime, can best defend the charge, either by opposing proofs or matter of justification : And with that view, originally, I think it was introduced, for unquestionably it is res *inter alios acta;*but, in time, it became *prima fade*evidence of the principal’s guilt. If something of this sort is not done, *13no white person will be convicted of an accessorial crime, where a negro, mulatto or Indian, is the principal; for 1 *1 ,.*the Court, when the record is offered, cannot enquire m-to the evidence upon which the conviction was founded, .and admit such records, where tiie evidence was such as is admissible against a white man, and reject them where it was not.

Tatxor C. .1. concurred.