Caselaw | Fourth Generation Inclusive

May 2, 2014

In connexion with the falsehoods uttered by them all.

State v. Joab B. Cheek, 35 N.C. 114 (1851).

Case appealed from Chatham County Superior Court.

Joab Cheek, Aaron Malone, and free man of color Robert George were indicted for passing a counterfeit $20 notes, purporting to have been issued by the Bank of Georgetown in South Carolina. All three were found guilty, and Cheek appealed.

At trial, one Seymore testified that he kept a shop on a high road in Chatham County, leading to Fayetteville. In March 1850, Berry Davidson and a man named Stout stopped their wagons for the night about 250 yards from his house. The same evening, Cheek, Malone and George showed up asking for liquor and a place to spend the night. They said they had been working for McCullock, a contractor working on a improvement project for the Navigation Company on the Deep River. When Seymore served them, they said they did not have change. After quiet discussion among themselves, George offered Seymore a $20 bill. Seymore refused it, saying that he was no judge of South Carolina banknotes, but did not think the bill was good. George then paid with a silver coin and for additional drinks with a knife. Cheek got drunk and fell asleep. Malone and George left, but returned for Cheek, who left as well.

Berry Davidson testified that Robert George came to his camp, identified himself as John George, a free man. George asked to buy Davidson’s watch, but Davidson “refused to trade … because he was a negro.” George said he would get his “young boss” to make the trade and returned with Malone, who called himself James Johnson. Malone and Davidson bargained a $13 price for the watch, and Malone offered the $20 note in payment. Davidson asked if it were good, and Malone told him that it was, that they had received it from McCulloch, for whom they had worked. Davidson took the bill and gave Malone the watch and one dollar in change. He did not have the other six, and they agreed that he would leave that amount with a man in Haywood the next day. Thirty minutes later, George returned with Cheek, who told Davidson that his name was Brooks, that he had lent Malone six dollars and would take five in repayment at that time. Davidson borrowed six dollars from Stout, paid Cheek, and Cheek and George left.

A man named Harris testified that an hour before daybreak the next morning, Cheek and George came to his house, claiming they had “lost their road.” Cheek was drunk and said his name was Brooks, and Thomas Brooks was his father.

McCulloch testified that he was a superintendent for contractors at Buckhorn Falls on the Deep River and paid out all the money spent there; that Cheek, Malone and George had worked for him in February or March; that he had paid the white men three dollars and “the negro $1”; and he had never given them a $20 note. McCulloch further testified that he had consulted his account books to refresh his memory, to which the defense objected.

The State introduced a copy of the South Carolina statute incorporating the Bank of Georgetown and called a Mr. Dewey, a clerk at the Bank of North Carolina, to offer expert testimony on the validity of the $20 note. The defense objected to both.

The issues before the North Carolina Supreme Court: (1) whether McCulloch should have been allowed to refresh his recollection without producing his account books at trial; (2) whether the copy of the South Caroline statute was properly received; (3) whether Dewey was qualified to assess the genuineness of the bank note; and (4) and whether Cheek, who was drunk and asleep when the note changed hands, was guilty as a principal in the crime.

The court made short work of the issues, responding yes to all four. As to the last, the justice noted: “The three persons formed one party, and appeared to be acting on secret consultations with each other, and all the little they had seemed to be in common.” The evidence raised a strong presumption against Cheek, and there was no error in judgment.

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July 10, 2013

A condition of ill-feeling.

State v. Shadrach Manuel, 72 NC 201 (1875).

This indictment for malicious mischief was tried in Cumberland Superior Court.

At trial, the State introduced evidence of the “condition of ill-feeling” between Shadrach Manuel and Sylvia Jenkins. He had threatened injury to her person and property, and in August, 1873, he had killed a couple of her hogs and had chopped her ox on the hip with an axe, seriously wounding the animal, which had be stitched and was unable to work until he healed. Also, her hogs and ox were in the habit of breaking into Manuel’s field of the defendant and injuring his crop, and he had complained to her and threatened to kill them if they did not stop.

Manuel argued in his defense that he could not have committed “malicious mischief” because the ox had only been wounded and had recovered from its injuries, and thus was not destroyed. Manuel was convicted and appealed to the State Supreme Court, which held that malicious wounding of cattle, short of destruction, is not an indictable offence at common law. Judgment reversed.

In the 1870 census of Flea Hill, Cumberland County: Shadrack Manuel, 48, farmer, wife Sarah, 36, and children Martha J., 17, Dolphus W., 13, Fredrick B., 10, Shadrack, 7, John M., 5, Mary M., 3, and Elizabeth A., 6 months. [Sidenote: Shadrach Manuel cannot be definitively identified in the pre-War censuses, but he is is likely to have been a member of one of the free colored Manuel families of Cumberland or Sampson County.]

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July 9, 2013

He saw his money walk into a white man’s pocket.

State v. Jarrott, a slave, 23 NC 76 (1840).

This case arose in Person County. Jarrott, an enslaved man, was indicted for the murder of Thomas Chatham, who was 18 or 19 years old. A 14 year-old white boy named John T. Brooks testified that he went with Chatham to a fish-trap in the neighborhood in a Saturday night and remained until “about two or three hours before day.” They were the only white people present. Jarrott and a free negro named Jack Hughes argued over a card game and called on Chatham to “keep the game for them.” After a second argument, Hughes refused to play anymore. Jarrott snatched up the handkerchief they had been playing on, knocking a twelve-and-a-half cent coin into the leaves. When he was unable to find it, he said “he saw his nine pence walk into a white man’s pocket, and that any white man who would steal a negro’s money, was not too good to unbutton a sheep’s collar.” Further, he charged Chatham with being raised on and living on stolen sheep, accused him of stealing his money, threatened to kill him if he did not give it up, and brandished a stick over his head. Chatham invited Jarrott to search his pockets, and turned them out when Jarrott refused. When Jarrott then accused Chatham of hiding the money in his shoes, he pulled off his shoes and socks. Another man got a light, searched among the leaves, and found the coin near where Chatham stood, which was “some six or seven steps from the spot” where Jarrott jerked up his handkerchief. Chatham sat down near the fire and Jarrott “continued to abuse him, using very indecent and insolent language.” Chatham asked Brooks for his knife, saying he wanted to cut his nails. He then told Jarrott that if he did not hush, he would stick it in him. Jarrott raised his stick and dared him, and Chatham chased him around the fire with a length of fence rail. Jarrott ran off, but returned and “said something.” Chatham picked up his fence rail and approached Jarrott with the knife in his other hand. Brooks heard two blows, then saw Chatham lying on the ground.

The testimony of Isaac, an enslaved man, essentially corroborated Brooks’, but he added that there was about a 15-minute gap between the argument about the money and Chatham’s renewal of the dispute and threat to stab Jarrott.

A free negro named Nathan Jones corroborated Isaac, but denied that Jarrott ever brandished his stick over Chatham. He also swore that Chatham said he would kill Jarrott that night or go to his master Monday and have him whipped, then would waylay him and shoot him with a rifle. Two other witnesses testified about Chatham’s wounds (two to the back of the head, about two inches in length); his size (“small and slender for a boy of his age,” said one, “not tall, but stoutly built,” said the other); and Jarrott’s stature (“about six feet high, and of the ordinary size of negroes of that height; and was about twenty-three years of age.”)

Jack Hughes testified that Chatham swung at Jarrott and missed before Jarrott knocked him down and struck him several blows.

The jury found Jarrott guilty of murder, and the judge pronounced a death sentence.

The appeal focused on the judge’s jury instructions. Though not agreeing with his every ruling, the Supreme Court upheld the verdict, establishing that “the same matters which would be deemed in law a sufficient provocation to free a white man … from the guilt of murder, will not have the same effect when the party slain is a white man, and the offender a slave ….”

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June 27, 2013

Rather than trust his client’s color before the jury …

Wm. W. Johnson v. Peter G. Basquere, Justice, and others, Freeholders, and Thomas Miller v. Boon, Tax Collector of St. Paul’s, and Rice, Sheriff, 28 S.C.L. 329 (1843).

The South Carolina Court of Appeals heard these cases on the issue of whether, where a “narrator” has argued that he is “entitled to occupy in society the status of a free white man,” he can discontinue proceedings by motion for non-suit or leave of court before publication of the verdict.

In Johnson v. Basquere, the narrator, who was about to be tried as a free person of color, filed a declaration in prohibition alleging that he “had a right to occupy in society the status of a free white man of South Carolina.” The defendants denied that he was a free white man, and the issue was put to a jury. “Much evidence was offered on both sides. Many witnesses on the part of the narrator, said that he was received in society, and regarded as a free white man, whilst witnesses on the part of defendants, testified that his great grand-mother, by the mother’s side, was a mulatto. The case was submitted to the jury, after full argument and a fair trial. When the jury returned to the court room, the foreman stepped to the clerk’s desk to write his verdict, and when he was about to deliver the record to the clerk, a motion was made to poll the jury, which the presiding Judge refused.” The narrator’s counsel –suspecting an unfavorable verdict – then moved to discontinue the proceeding without publishing the verdict. This motion was granted.

Johnson was in court, “and had the appearance of a white man. He had been a member of a volunteer company, and had voted at the general election for members of the Legislature. There was no question but what his lineage on his father’s side, was that of white, and rather respectable people. His mother, Mary, was the daughter of one Nancy Patrick, formerly Nancy Miller. [Mr.] Patrick, who had married Nancy, was regarded a colored man, and Mary was born in wedlock; but several witnesses said Patrick never claimed her, and that her mother said she was the child of an Irish schoolmaster, Ellis, living in the neighborhood at the time she was begotten and born, and she was so generally regarded. Nancy Miller’s father was a white man, who married Elizabeth Tan,” Johnson’s great-grandmother. “Elizabeth Tan was a colored woman, with thick skin and long hair; and from what came out in another case, she was originally from North Carolina, and claimed to be an Egyptian.”

In Miller v. Boon, the question was whether the narrator “was subject to a poll tax imposed on free persons of color, of African origin and taint; or whether he was entitled to occupy the position of a free white man.” In an earlier matter, a judge had held that the narrator, Isaac Winningham, and his wife Rachel,“were not subject to be taxed as free persons of African origin, but that they were exempt from such a tax, as the descendants of Egyptians.” Winningham’s counsel argued that this decision ruled and rested his case. The solicitor then called Winningham into court – “and his appearance was that of a mulatto. At this stage of the proceedings, and perhaps when the Solicitor was about calling witnesses to shew that narrator was a mulatto, the counsel for narrator moved to discontinue his proceeding, preferring to rely on the [earlier] judgment …, rather than to trust to his client’s color, before the jury. The presiding Judge granted the motion.”

The court of appeals determined that both parties to the action are voluntary and entitled to stop proceedings to take a more prudent course. Decisions upheld.

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June 26, 2013

Guilty of cohabitation with a slave.

State v. Zadock Roland, 28 N.C. 241 (1846).

At the Spring Term, 1844, of Guilford County Superior Court, Zadock Roland, a free negro, was found guilty of living and co-habiting with a female slave named Peggy, the property of George Albright. Two years later, at Spring Term 1846, Roland came into court for judgment. He “resisted the motion, because, as he then said, the master of the slave Peggy had originally given his consent to their marriage and co-habitation.” If true, Roland should have been found not guilty. However, he did not raise the defense at trial and raising it post-conviction was too late. Judgment affirmed.

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June 24, 2013

It did not make a slave of Mills.

John A. Philips v. Patrick Murphy, Adm’r, 49 NC 4 (1856).

This action arose in Cumberland Superior Court.

Robert Mills, a free man of color, entered into this written contract with Louis A. Nixon:

“Know all men by these presents, that I, Robert Mills, for and in consideration of sixty dollars, to me in hand paid, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have given, granted, bargained and sold, and by these presents do give, grant, bargain and sell unto Louis A. Nixon, his executors and assigns, my active services, as a servant, for the full and entire term of five years, and the full and entire control of my person and labor during that entire time.”

Nixon died, and his administrator entered into a contract with plaintiff Phillips: “Six months after date, we, or either of us, promise to pay Charles D. Nixon, administrator of Louis A. Nixon, or order, the sum of one hundred and twenty-five dollars for value received, in hire of a certain negro, Robert Mills, for the term of four years, or so long as Louis A. Nixon was entitled to the services of the said negro.” Phillips then put Mills “against his consent … into the possession of” a Barksdale.”

The suit contended that this bond was void as being against the policy of the law because “no man could sell himself into a state of slavery …” The Court disagreed, stating, “There is nothing in the transaction against the policy of the law. The legal effect of the deed executed by Mills to Nixon, was not to make a slave of Mills, or in any way vest in Nixon a title to him as property, but simply to give Nixon a right to his service for five years, upon an executory agreement, for a breach whereof an action of covenant would lie. The fact, that Mills is a free negro, makes no difference, for a white man may bind himself in the same manner. Indeed, it is common in some portions of the State, for white men to hire themselves during crop time, or for a year. The peculiarity about this contract is, that it is for five years, and is extended, by express words, to the assigns of Nixon. …”

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June 24, 2013

The prisoner escaped; the question is moot.

The State v. George, a free negro, 1 NC 62 (1794).

The issue: Whether a slave could testify as a witness against a free negro.

The decision of the Superior Court of Law and Equity: “Mr. Solicitor General Jones had drawn a bill of indictment for burglary against the defendant: and at the moment it was about to be sent to the grand jury, and the book was handed to the witnesses:

Martin called the attention of the Court to the table: observing that one of the witnesses about to be sworn, was a negro slave; that although the defendant was a negro, yet, he being a free man, it was perhaps improper that a slave should testify against him.

McCoy, J. [Ashe, J., tacente.]

If there be anything in the objection, the Court will attend to it at the trial.

The slave was sworn, and the bill was found. The prisoner being arraigned, pleaded not guilty; but made his escape before the day assigned for his trial.”

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June 18, 2013

A slave is not a competent witness against a free negro?

Cox v. Dove, a Free Negro, 1 NC 72 (1796) .

1. A slave can not be a witness against a free negro.

2. In trespass quare clausum fregit, the defendant under the general issue may give in evidence a license.

Trespass quare clausum fregit and non culpabilis pleaded.

To prove the entry a negro slave was called and offered to be sworn.

But the Court (WILLIAMS, J., saying he never heard such a thing asked: HAYWOOD, J., tacente,) refused to admit the witness, although the defendant was stated to be a negro. 2, 1777, 2, 42, 307.

The case of State v. George, ante, p. 40, was cited: but much argument was not offered by the plaintiff’s counsel; there being other witnesses, attending to prove the fact intended to have been proved by the slave. He having been offered only to come at the opinion of the judges.

Slade, for the defendant, offered to read in evidence, a letter from the plaintiff to the defendant, authorizing him to tend turpentine trees on the premises.

Martin, for the plaintiff, objected to this: on the ground that if the defendant meant to avail himself of the plaintiff’s license, he ought not to have denied the entry, which he had done by pleading non culpabilis; at all events he ought to have pleaded justification. He cited Co. Litt., 282.

The Court, HAYWOOD, J., and STONE, J., nevertheless permitted the letter to be read: on the authority of a case cited out of Buller’s Nisi Prius, 90. Hatton & Neale, per Jones, C. J., 1683.

The plaintiff proved a trespass committed by cutting timber, and had a verdict.

NOTE.–Upon the first point see State v. George, ante, and 1 Rev. Stat., ch. 31, sec. 81. The law was later clearly settled that a slave is a competent witness against a free negro.

[Sidenote: Though I have a law degree, I’m not completely confident about my interpretation of this bizarrely fashioned decision. Thus, I present it in its entirety. — LYH]

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May 8, 2013

She is entitled to all of it.

Doe on the demise of Mary Ann Jones v. William Norfleet, 52 NC 473 (1860).

This ejectment action was tried in Edgecombe County Superior Court.

The plaintiff, “a colored woman,” claims title to a parcel of land under the 1860 will of Henry S. Lloyd, which contains the following clause: “I give and devise to Mary Ann Jones, a free colored woman, of the said town of Tarborough, and to her heirs and assigns forever, the lot of ground and the house thereon erected in the said town, on which she now lives.”

William Norfleet, Lloyd’s executor, having been directed to sell all of Lloyd’s real estate in Tarboro, except that specifically devised, took possession of lot 118, insisting that lot only 107 passed to Jones.

The two lots, totaling about an acre, adjoin each other and are enclosed by one fence, except nine or ten feet of lot 118 at the upper end, which has a steep descent. There has never been a dividing line between the lots, which are situated “in the suburbs” of Tarboro.

In 1856, before the lots were enclosed, Lloyd built an ice house on lot 118, at a cost of some 800 dollars, for storing ice for a tavern in which he had one-half ownership. The lots were surrounded by a board fence in 1857, and the same year Lloyd built Jones a house on lot 107. She moved in immediately and resided there at the time of the suit. In the spring of 1859, Jones enclosed a small portion of the ground for a garden. There is a smokehouse on lot 107, built when the house was built, and, on lot 118, a small privy. In 1858, Lloyd built a rough cabin with a small garden for an aged slave. Jones had the use of the rest of both lots for the purpose of cultivation.

Tarboro’s town plan shows lots fifty yards square, and according to such measurement, part of Jones’ garden and the privy are situated on 118. Lloyd bought both lots from the same person at the same time. He lived near them and frequently saw them, but it is unknown whether he knew where the line between them would run.

The Superior Court judge ruled that Jones was entitled to both lots, and Norfleet appealed.

“A testator, owning a parcel of land embracing two town lots, on which he had settled a woman, having built her a dwelling on one lot and an outhouse on the other, and permitted her to inclose a garden, partly on each lot, and to use the whole parcel inclosed within one fence, devised to her ‘the lot of ground and house thereon erected in the said town where she now lives.’ The facts are distinctly and clearly stated, and after duly considering them, in connection with the language of the will, we are of opinion that the entire parcel of ground, embracing lots 107 and 118, passed under the devise, except such portions as had been appropriated by the devisor to the ice-house and to the cabin and garden of the old slave.” Judgment affirmed.

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April 28, 2013

Not so fast — those slaves are mine.

William K. Lane v. Jane Bennett et al., 56 NC 371 (1858).

This case was removed from the Wayne County Court of Equity. By valid will, Furnifold Jernigan made several provisions for the disposal of his slaves. To his wife Jane Jernigan (who later married Thomas Bennett), he left 13 slaves, including Bill Winn, John Winn, Simpson and Anne. To his daughter Mary Anne Kelly, he left eight slaves, including Olive. He provided for the liberation of “negroes, Dave, Tom, Morris, Lila and Mary” and their transport to a free state, and he directed that ten named slaves be sold. John A. Green and William K. Lane were named executors.

Before the legacies were paid out, Adam Winn filed suit to recover John Winn, Bill Winn, Simpson, Anne, Olive and Dave, claiming that (1) he had mortgaged the slaves to Jernigan to secure payment of money Jernigan loaned him, and (2) he had a judgment attesting that he had repaid the money, and the slaves had been reconveyed to him.

The executors filed a “bill” with the court seeking guidance on the will’s provisions. Jane Bennett and Mary Anne Kelly claimed the full value of the slaves bequeathed to them or, in the alternative, the amount paid by Winn to redeem them. The court found that each was entitled to the amount of the redemption. (And, incidentally, Dave, having been redeemed by Winn, “loses, of course, his freedom intended for him…”)

[Sidenote: As noted elsewhere, John Winn and Bill Winn were Adam Winn’s sons, as well as his slaves. He mortgaged his children repeatedly. Jernigan, of course, was a notorious negro-stealer. — LYH]

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