Fourth Generation Inclusive

State v. Griffin Stewart, 31 NC 342 (1849).

Griffin Stewart was indicted in Nash County for murder in the death of Penny Anderson.  Though unmarried, he and Anderson had lived together for several years as man and wife. On a Monday night in October 1848, Anderson was at home with Griffin. Witnesses reported hearing blows and lamentation, as if a woman were being beaten violently and begging for mercy. The outcry came from the direction of Stewart’s house. The next morning Penny Anderson was missing, and Stewart claimed, “She had gone to one Hale’s,” who lived about ten miles off.  Anderson had not been at Hale’s, however, and could not be found anywhere. Six weeks later, her body was found, “partially buried in an out-of-the-way place,” some five hundred yards from Stewart’s house. Her badly decomposed body showed signs of violence, and she appeared to have been choked to death.  She was identified by a ring, several articles of clothing, a broken finger, and other means.

Stewart was “of a black complexion.” He had lived in the area about ten years, and during all that time he passed for and was treated as a free man of color.  He was treated as a free negro during trial and spoken of as such by the counsel. Circumstantial evidence tended strongly to show that Stewart had murdered her, and the jury found him guilty.

Stewart appealed on two grounds.  First, evidence showed that the only people at Stewart’s house on the night of the murder were Stewart, Anderson, and Anderson’s grandson, who was between seven and eight years of age. The State did not call the boy as a witness and, in its opening address to the jury, Stewart’s counsel strongly urged that the jury presume that the child’s testimony would have hurt the State’s case. The State countered that the boy had no testimony to offer and, in case, Stewart’s counsel could have called him himself.  Stewart’s lawyer then moved the Court to instruct the jury that they should not convict Stewart upon circumstantial evidence, when the boy’s direct testimony was available. The Court refused to give the instruction, and Stewart’s counsel moved for a new trial.  However, the state Supreme Court found no error on this ground, noting that it is “in the discretion of the prosecuting officer, what witnesses he will examine.” “If other witnesses can shed more light on the controversy, it is competent for the prisoner to call them.”

Second, Counsel argued that Stewart, being black, was prima facie a slave, and the Court had committed error in not admonishing the mulatto witnesses, as required by law in the trial of a slave for a capital offense.  The Supreme Court rejected this argument as well, reasoning that If Stewart had wished to be tried as a slave, he had raised the issue too late. Further, there was evidence to rebut the presumption of slave status, and Stewart had been treated as a free negro during the whole trial. “It would be trifling with the administration of justice, to allow a prisoner to pass himself off as a free negro, and take his chances for a verdict; and then turn around and insist that he was a slave.”

[Sidenote: In White Women, Black Men: Illicit Sex in the 19^th Century South, Martha Hodes notes that Penny Anderson was a white woman. I will supplement this post when I get a chance to study the case’s manuscript records. – LYH]