Page v. Luther, 51 N.C. 413, 6 Jones 413 (1859)

June 1859 · Supreme Court of North Carolina

51 N.C. 413, 6 Jones 413

JAMES PAGE v. MICHAEL LUTHER.

Since tlie enactment of the Revised Code, selling spirituous liquor to a slave, without a permission in writing, is contrary to law, even though the spirits be for the use of the master, and the slave was really directed to go for it.

Action oh Tins case, tried before Caldwell, J., at the last Term of Randolph Superior Court.

The case arose upon a warrant from a justice of the peace, for the penalty of $100, given by the statute, Revised Code, chapter 34, section 92, for unlawfully trading with a slave. There was, upon the evidence, a verdict for the plaintiff, and the defendant then moved in arrest of judgment; which Being refused, and, judgment given on the verdict, the defendant appealed. In this Court, the motion in arrest, was again insisted on. The warrant, alleges the complaint of James Page, that “ Michael Luther, on &c., in &c, did sell, and deliver one quart of spirituous liquor, to a certain slave named Pleasant, the property of George Spencer, without permission in writing from the said Spencer, or from any other person, having the management of the said slave; whereby and by force of the statute entitled “ Crimes and Punishments,” the the said Luther forfeited the sum of $100, to any person suing ing for the same,” with the usual mandate to take the body, &c., “ to answer the said complaint, and show cause, if any he hath, why the said Page shall not recover from the said Luther, the said sum of $100, which the said Luther has forfeited, as aforesaid, by selling and delivering, &c., contrary to the statute aforesaid.”

W. J. Long and Gorrell, for the plaintiff.

J. T. Morehead, for the defendant.

Roebot, J.

The only reason urged for arresting the judgment is, that the warrant does not aver that the liquor was not for the owner or manager, as well as that it was sold to the slave without the written permission of the master or manager; because, it is said, it cannot be supposed the Legislature meant to deprive an owner of a slave of a convenient use of him, as is the case, if the owner cannot, on an emergency send his slave, by oral command, for such an article for the owner’s use. The objection is open to several answers. In the first place, the averment that the sale and delivery was to the slave, imports that it was not to, or for, the master; at least, so far as this, that, if the fact had been so, it was open to the party on trial, by evidence, to show that the sale and delivery ivas for the master, and, by consequence not to the slave. But, in the next place, if such evidence had been given, the defense must have failed, under the law, as it stands in ’the Code of 1854, which admits of no such exception to the general prohibition Of trading with slaves for spirituous liquors, as that contained in the previous statutes; Revised Statutes, chap. 34, sec. 75, namely, authorising such sale and delivery for the owner. That provision was found to open the door to so many evasions and abuses, that in the late Code it was omitted, and the enactment left to stand, generally, that it should be unlawful to sell liquor to a slave, on any consideration whatever, without the permission, in writing, of the owner or manager. So that, now, such a permission, in writing, is the indispensable pre-requisite to excuse such trading with a slave for himself, and the averment in the negative on that point, therefore, completes the description of the offense as it stands in the statute.

. Per Cubiam, Judgment affirmed.