Thacher, J.:
This case appears in this court by writ of error to the circuit court of Madison county.
The plaintiff in error was indicted at the November term, 1842, of the said circuit court, under the statute of 1842, entitled an “Act to regulate the mode of obtaining license to sell vinous and spirituous liquors, and to amend the act entitled an £ act for the suppression of tippling houses, and to prevent the odious vice of drunkenness,’ approved February 9th, 1839.” The indictment was framed upon the 5th section of said act, by which it was enacted, “ that if any person, either -with or without license to retail, shall sell any vinous .or spirituous liquors to any slave, without permission of his or her master, mistress, owner or overseer, he, she or they offending shall be subject to indictment or [216] presentment, and upon conviction thereof, shall pay a fine of five hundred dollars, and shall be imprisoned in the common jail of the county for a period of not less than thirty nor more than ninety days; and upon the trial of any indictment under this section, if it be proven, the person to whom the liquor was sold was a negro or mulatto, that fact shall be received as jorima facie evidence of his or her being a slave.” Upon this indictment, the jury found a verdict of guilty.
Yarious points are made to this court, and insisted upon, as showing error in the judgment of the court below. We shall confine ourselves to one only for the purpose of judgment herein, but for general purposes, and to explain our judgment, we propose likewise to remark upon another point that was fully reviewed by counsel in the argument here.
It was objected below, that the court, upon the trial, refused to rule out a portion of the testimony of John D. Scott, who was introduced as a witness on the part of the state. That portion of his testimony where the part referred to occurs, is set forth in the bill of exceptions, thus : “ Witness asked the negro man where he got it (a bottle of whisky)? and he said that Noon a» had let him have it, and Noonan denied having sold the whisky to the negro man. That Noonan looked down and colored in the face greatly. That one Hoyle was present at this conversation, and said that Noonan did let the negro man have the whisky.” This latter statement of what Hoyle said, the court below, upon application of defendant’s counsel there, refused to rule out from the evidence.
The propriety of the judgment of the court below upon this application is fairly questionable here, as this court is not advised and cannot say how much the weight of that testimony might have affected and influenced the jury in finding their verdict. It is now insisted by the plaintiff in error, that the statement of Scott in relation to what Hoyle said, is hearsay evidence, and of a kind inadmissible on the trial; and by' the state, to have constituted a part of the res gestos, and therefore legitimate evidence for the jury.
To explain the character of a transaction, not only what was done, but what was said by all the parties during the transae[217] tion is admissible. In the celebrated trial of Lord George Gordon, the cries of the mob accompanying him were pronounced admissible to show the intention of its leaders. The principle, however, seems to depend upon the existence of two attendant circumstances —that the testimony must relate to what was said by one connected with the act in question and during its progress. The individual, Hoyle, was merely present at a conversation, in which he volunteered his remark about what defendant below had done; and it does not appear that Hoyle was in anywise connected with the transaction save as an uninterested listener to a conversation. What he is declared to have said, shows also that he wonld have been a witness to a material fact in the case, to wit, the delivery of the article alleged to have been sold ; and there is nothing to show that he might not have been produced on the trial. It is well settled in 1 Starkie Ev., 31 (Phila. ed., 1834), that “ where a witness to facts might be produced and examined on oath, little doubt can be entertained that hearsay evidence of his mere declaration, heard and detailed by another, ought to be excluded, so infinitely inferior in degree must such hearsay evidence be when compared with direct testimony delivered in open court.” In this connection, we would again remark, that as in the daily transactions of life, men are apt to receive and credit without scruple the statement by one man of what was said by another, and as the jury, in the instance under review, might have been directed to their conclusions solely by Scott’s repetition of Hoyle’s statement, if it was erroneously admitted by the court below, we cannot suifer the plaintiff in error to be prejudiced to that extent. Considering it, then, abstractedly, a3 a question of testimony, we are forced to the conclusion that it was illegal evidence in this case, and should have been ruled out by the court below upon the application of the defendant’s counsel.
In the argument of this case, great stress was made, and much reliance seemed to be placed by the counsel for the plaintiff in error upon the insufficiency of the indictment growing out of a supposed unconstitutionality of the statute under which it was framed. As the attorney general expressed his own doubts upon the point, the court feels called upon to advance its opinion.
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Thacher, J.:
This case appears in this court by writ of error to the circuit court of Madison county.
The plaintiff in error was indicted at the November term, 1842, of the said circuit court, under the statute of 1842, entitled an “Act to regulate the mode of obtaining license to sell vinous and spirituous liquors, and to amend the act entitled an £ act for the suppression of tippling houses, and to prevent the odious vice of drunkenness,’ approved February 9th, 1839.” The indictment was framed upon the 5th section of said act, by which it was enacted, “ that if any person, either -with or without license to retail, shall sell any vinous .or spirituous liquors to any slave, without permission of his or her master, mistress, owner or overseer, he, she or they offending shall be subject to indictment or [216] presentment, and upon conviction thereof, shall pay a fine of five hundred dollars, and shall be imprisoned in the common jail of the county for a period of not less than thirty nor more than ninety days; and upon the trial of any indictment under this section, if it be proven, the person to whom the liquor was sold was a negro or mulatto, that fact shall be received as jorima facie evidence of his or her being a slave.” Upon this indictment, the jury found a verdict of guilty.
Yarious points are made to this court, and insisted upon, as showing error in the judgment of the court below. We shall confine ourselves to one only for the purpose of judgment herein, but for general purposes, and to explain our judgment, we propose likewise to remark upon another point that was fully reviewed by counsel in the argument here.
It was objected below, that the court, upon the trial, refused to rule out a portion of the testimony of John D. Scott, who was introduced as a witness on the part of the state. That portion of his testimony where the part referred to occurs, is set forth in the bill of exceptions, thus : “ Witness asked the negro man where he got it (a bottle of whisky)? and he said that Noon a» had let him have it, and Noonan denied having sold the whisky to the negro man. That Noonan looked down and colored in the face greatly. That one Hoyle was present at this conversation, and said that Noonan did let the negro man have the whisky.” This latter statement of what Hoyle said, the court below, upon application of defendant’s counsel there, refused to rule out from the evidence.
The propriety of the judgment of the court below upon this application is fairly questionable here, as this court is not advised and cannot say how much the weight of that testimony might have affected and influenced the jury in finding their verdict. It is now insisted by the plaintiff in error, that the statement of Scott in relation to what Hoyle said, is hearsay evidence, and of a kind inadmissible on the trial; and by' the state, to have constituted a part of the res gestos, and therefore legitimate evidence for the jury.
To explain the character of a transaction, not only what was done, but what was said by all the parties during the transae[217] tion is admissible. In the celebrated trial of Lord George Gordon, the cries of the mob accompanying him were pronounced admissible to show the intention of its leaders. The principle, however, seems to depend upon the existence of two attendant circumstances —that the testimony must relate to what was said by one connected with the act in question and during its progress. The individual, Hoyle, was merely present at a conversation, in which he volunteered his remark about what defendant below had done; and it does not appear that Hoyle was in anywise connected with the transaction save as an uninterested listener to a conversation. What he is declared to have said, shows also that he wonld have been a witness to a material fact in the case, to wit, the delivery of the article alleged to have been sold ; and there is nothing to show that he might not have been produced on the trial. It is well settled in 1 Starkie Ev., 31 (Phila. ed., 1834), that “ where a witness to facts might be produced and examined on oath, little doubt can be entertained that hearsay evidence of his mere declaration, heard and detailed by another, ought to be excluded, so infinitely inferior in degree must such hearsay evidence be when compared with direct testimony delivered in open court.” In this connection, we would again remark, that as in the daily transactions of life, men are apt to receive and credit without scruple the statement by one man of what was said by another, and as the jury, in the instance under review, might have been directed to their conclusions solely by Scott’s repetition of Hoyle’s statement, if it was erroneously admitted by the court below, we cannot suifer the plaintiff in error to be prejudiced to that extent. Considering it, then, abstractedly, a3 a question of testimony, we are forced to the conclusion that it was illegal evidence in this case, and should have been ruled out by the court below upon the application of the defendant’s counsel.
In the argument of this case, great stress was made, and much reliance seemed to be placed by the counsel for the plaintiff in error upon the insufficiency of the indictment growing out of a supposed unconstitutionality of the statute under which it was framed. As the attorney general expressed his own doubts upon the point, the court feels called upon to advance its opinion.
[218] • It is very true that under our constitution, no person can be accused, arrested or detained, except in cases ascertained by law, or deprived of his life, liberty or property, but by due course of law, and that every accused bath a right to demand the nature and cause of his accusation, and that his right to a trial by jury shall he inviolate. In what does this statute infringe either of théle personal rights and privileges % It is said that at the adoption of our constitution there was included the common law as a part of the law of the land, and that it would now be an unconstitutional act to alter or repeal by legislature any principle, rule, or law, that was then a part of the common law. That, indeed, which was the common law at that juncture, was in fact incorporated into our constitution, and, consequently, not subject to any power short of that of the people themselves, in the exercise of their inherent political power, to alter or abolish their form of government. This view of the subject does not meet the approbation of this court, nor does it for the purpose intended, require its elaborate examination. The language of the constitution rebuts the presumption of such a meaning or intention. That the common law, like the common atmosphere around every living being, is gladly received by all framers of a government, is certainly very true; but that it was adopted to remain perpetual, unaltered and unalterable, and not to be tempered to our habits, wants and customs, was never designed by the wisdom of those who established our fundamental law. The constitution everywhere allows, and in some places exacts, the enactment of laws directly contravening the long established rules of the common law; and when it enjoins that the rights of persons shall be “ascertained bylaw,” and protected “by the common law,” it intends to sanction only that species of legislation which shall, in its assertion in criminal cases, be equal and general, and not partial and particular. The common law was the product of the experience of time and the necessities of men living under a form of government. Many of its rules are now vexatious and have become unnecessary and unfitted to our occasions, and are properly repealed when they are found to obstruct the current of justice or the interests of the whole people. Many are “ unseemly niceties,” which Sir Matthew [219] Hale declares to be “ a reproach to the law, a shame to the government, and encouragement to villainy, and a dishonor to God.” And our constitution has wisely provided for us the means to obtain what he desired to see, when he adds, “ that it were very fit that by some law this overgrown curiosity and nicety were reformed, which is now become the disease of the law, and will, I fear, in time grow mortal, without some timely remedy.”
The statute runs against several mala qoroh'ibita, which were unknown to the common law. The substance of the oifense is the selling of vinous or spirituous liquors to a slave without the master’s permission, and not necessarily the selling of a particular kind of vinous or spirituous liquor to the slave of a particular individual. Every oifense consists of the omission or commission of certain acts, under certain circumstances, and all, which are its necessary ingredients, must be stated. It certainly is not material to the proof of spirituous liquors to define its particular kind by name, or to the proof of a person being a slave, to show his master’s name. Nor is this a parallel case with those uncertain charges enumerated in being “ common thieves, common evil-doers,” and such like. It cannot be well said that no one can well know how to defend himself from so general a charge, as it is deemed, when the statute provides it in the permit of the master of the slave to whom the article is sold, nor that he cannot plead the charge in bar or abatement of a subsequent prosecution. The evidence under a plea of autrefois acquit or convict, is not exclusively of the record, but may be oral to the extent required in the circumstances. And where the law departs in one particular from a previous rule, it necessarily admits a proportionate relaxation in all particulars growing out of that departure.
The judgment of the court below must be reversed, and a new trial granted by the circuit court of Madison county.