#### The State *v.*Thomas Stone.

The rule of evidence, established by the 5th section of the act of 1834, p. 14, in relation to illegal traffic with slaves, applies only, it seems, to cases arising under the act of 1817.

Though the act of 1834, *as to vendors*of liquors, &c. may be considered as repealing the penal provisions of the act of 1817; yet the rule of evi. dence established by the act of 1817, (which requires the defendant to produce and prove the written permission of the owner or employer, to deal, trade or traffic,) remains in full force, and applies to indictments under the act of 1834.

Where a man is charged with a crime and does not deny it, a jury is warranted, (especially in connection with other strong circumstances,) in finding a verdict of guilty.

*Before O’NEALL,*/., *at*Beaufort, *Spring Term,*1838.

The report of his honor, the presiding judge, is as follows:— “ The defendant was indicted under the act of 1834, as a vendor *148of spirituous liquors, in four counts; 1st, for selling ; 2d, exchanging ; 3d, giving; and 4th, delivering spirits to a slave. The proof was, that the defendant was the owner of a store in Graham-ville, in ¡¡which he sold spirits. To the inclosure, in which was situated the store of the defendant, the house of a lady, and a tailor’s shop, there was a small back gate. The defendant being suspected of trading with negroes, a negro man named Charles, belonging to Captain„ Huguenin, was furnished with twenty-five cents and a bottle, and directed to go to the store of the defendant and buy some spirits. He was accompanied by Mr. Huguenin and Mr. Dupont: the latter saw him enter the inclosure at the small gate spoken of: he returned in a short time, with a pint of rum in the bottle, and the change : Messrs. Huguenin and Dupont then went to the defendant’s store, and met him at the door: Mi’. Huguenin, holding the bottle in his hand, said “ here is a bottle of spirits which you sold to my father’s man.” The defendant replied “ I did not sell the bottle.” Huguenin said “ no: but you sold the liquor.” To this defendant said nothing : Huguenin then told him, he had a day or two before sold his hoüse-servant some spirits: the defendant said he did not know that the negro to whom he had previously sold the spirits, was his, (Mr. Huguenin’s). — Mr. Stephens, a witness for the defendant, said that he and his co-partner occupied the tailor’s shop, in the rear of the store: that he had been all the evening in the store: that negroes had been there: that he did not see Captain Huguenin’s man, Charles, there: that no spirits had been sold that night: that he was present when Huguenin and Dupont came : that the defendant, when charged by Huguenin with selling spirits to Charles, *denied it.*— The jury were instructed, that the 5th section of the act of 1834, from its words, applied to cases under the act of 1817; and that therefore the rule of evidence established by it could not apply to this case. It is strange, however, that the defendant should except to a part of the charge, (as this manifestly was,) in his favor. I thought that, notwithstanding the act of 1834, as to vendors, was a repeal of the penal provisions of the act of 1817, that yet the rule of evidence established by that act, (which requires the defendant to produce and prove the written *149permission of the owner or employer, to deal, trade, or traffic,) remained in force, and applied to this case. I said to the jury, in the course of my observations on the evidence, that when a man was charged with a crime and did not deny it, we should be usually led to conclude that he was guilty; on the principle of the old adage,' “ silence gives consent.” — The evidence was fairly summed up, and submitted to the jury, who very properly convicted the defendant.”

The defendant now moves for a new trial on the following grounds: 1. That his honor, the presiding judge, charged, that the 5th section of the act of 1834, entitled “ An act to amend the laws in relation to slaves and free persons of color,” making the evidence of a negro being seen to go into a store without an article, and to come out with an article, sufficient to convict a defendant of trading, &c. *did not*apply to the offence for which the defendant was indicted in this case. 2. That his honor charged, that the clause in the act of 1817, as to the evidence of a ticket, &c. *did*apply to this case. 3. That his honor charged, that generally in law, when one is charged with having committed an offence, and he fails to deny it, the old saying of “ silence gives consent,” *would apply.*4. That penal statutes are to be construed strictly, and that the act of 1834 makes it sufficient evidence to convict, that a slave be seen *entering “ a shop, store, or house,”*used for trading, without an article, and returning with it; but that the evidence in this case was only that the slave was seen entering a “ yard,” and the witnesses expressly testified, that they did not see him enter either shop, store, or house, yet his honor charged the jury that the evidence was sufficient, under that act, to convict the defendant. 5. That the verdict is contrary to law and the evidence.

Curia, per ONeall, J.

In this case, we perceive no error in the legal instructions given to the jury. The facts well warranted the verdict.

The motion is dismissed.

Gantt, Evans and Butler, Justices, concurred. Richardson, *150J. was absent 'from indisposition. Earle, J. was absent at the argument, but concurred in the judgment.

*M’Carthy,*for the motion.

*Solicitor Edwards,*contra.