Smith v. State , 24 Tex. 547 ( 1859 )

Roberts, J.

The indictment charges the defendant with having sold a pint of whiskey to the negro, Isaac, slave of Allen, without the written permission, &c. There is no question, but that Isaac had the whiskey, that Smith sold it, and that it was without Allen’s permission. The matter of fact, in controversy is, whether the whiskey was sold to Little, or to the negro, Isaac.

It appears that A. H. Chalmers, while acting as captain of the patrol, found Isaac with the whiskey, near Smith’s grocery; took the negro into the grocery, and charged Smith with having sold it to him, without permission of his master. The witness, Chalmers, says, that Smith said he drew the liquor and gave it to the negro, but that another man paid for it. Another witness stated, that Smith denied that he sold the liquor to the negro, but said that he sold it to Little. Little being examined as a witness, stated that he owed Langham’s negro fifty cents, for riding a wild horse for him; that he let Langham’s boy have the bottle of whiskey in payment for riding the horse; and that he does not know how Allen’s boy got the whiskey. Another witness states, that Little got Langham’s boy to ride his horse for him; applied to Smith for money to pay the negro; Smith refused to let him have it; he then got whiskey from Smith to pay the negro.

The court, at the instance of the district attorney, charged the jury, that “ if Smith drew, and gave the negro, Isaac, the whiskey, upon the order of an unauthorized person, that is, one who is not the master, mistress, overseer, or employer, and received the money for the same, from said person, then he would be guilty of selling to the negro, if he knew that said person was not the master, mistress, overseer, or employer.” The latter part of this charge might, perhaps, have been properly left out. For, if Smith sold the whiskey to the negro, Isaac, upon the order of Little, it was his business, under the law, to inform himself .that Little was the master, overseer, or employer of the slave, at the time of the sale. Smith, however, cannot complain of this charge. Nor was this condition attached to it, any benefit to Smith; as it was proved, that he very well knew that Isaac belonged to Allen.

To present the rule on the other side of the controverted fact, the defendant’s counsel asked the court to charge the jury, that “if they believed from the testimony, that Smith sold the liquor to Little, they must find for the defendant.” This instruction the court refused; and its refusal is assigned as error.

Had this charge been given, the exact matter in issue would have been fairly and fully submitted to the jury. It would have served, in connexion with the previous charge, to direct the minds of the jury to the investigation of the transaction, so as to arrive at a conclusion as to what it really was; that is whether Smith sold the whiskey to Isaac, upon the order of Little, or sold it to Little.

We think this charge should have been given. The object of the law is, to prevent persons engaged in the business of selling liquor, from unlawfully selling or giving it to slaves. (O. & W. Dig. 542, Art. 668.) It contemplates, in case of sale, a dealing with the slave, by the person selling. If a white man should intervene, and buy it, not colorably or collusively, but really and in good faith, and then give it or pay it to a slave, that would not be dealing with the slave, by the first seller, but with the white man; and he would not be responsible for the use made of the liquor, thus bought from him by a white man. The judgment is reversed and the cause remanded;

Reversed and remanded.