State v. Turner — 5 Del. 501

Majority

p. 501

THE STATE vs. WILLIAM TURNER.

Headnote

“ Exporting” a slave means carrying oat for the purpose of sale.

The act entitles the slave to his freedom, but this must be judicially decided, and can. not be tried collaterally.

After a decree of freedom, and pending an appeal, the slave is not a competent witness.

The defendant was indicted for exporting a slave; Daniel Webb. The status of the negro boy was proved, and the fact that Turner, his master, took him out of the State by night, and confined him in a private jail, at Salisbury, from which he escaped. Suit was instituted for his freedom, founded on these facts; and a decree of freedom entered, from which the master took an appeal, which was still pending.

The negro boy was called as a witness and objected to.

Mr. Houston.

His freedom is not yet established. The appeal is still pending.

Attorney Greneral.

The freedom of the boy is a consequence of the act of exportation, not of the judgment of the court. It requires no judgment to make him free. From the moment it is proved in this case that Daniel Webb was carried over the line, this court will regard him as a free man. No security has been given on the appeal. (Digest, 154.)

The right of appeal, if under the act of 1797, (Digest, 409,) is without any restriction requiring security for costs; and indeed there was not, under that act any propriety in requiring security for costs, for the master was liable at all events to the costs; and if the appeal is regulated by the Constitution, (art. 6, § 19,) the qualification imposed on the effect of an appeal without security, has reference only to the further proceeding upon the judgment of the court below; and not to the effect of the judgment appealed from.

A judgment lawfully appealed from, is for the time removed; its force suspended; the consequences flowing from it for the time avoided.

The effect of this judgment, therefore, in establishing Webb’s freedom cannot be, at present, to make him a witness. And that freedom must be established by a judgment—an existing valid judgment on that question. For though the freedom when established, relates to the time of the act which entitled him to his freedom, we do not agree with the argument that this fact can be ascertained collaterally.

The witness was rejected.

The Chief Justice charged as follows:—The indictment is for exporting a slave. Export means to send or carry out of the State, for the purpose of sale, trade or disposition. (Digest, 153, § 9.)

The State must prove that Dan was a slave; that he was exported by the defendant to Maryland, to be left there, sold or disposed of as a slave.

The true meaning of the term " export” in this connection, is the taking or carrying out as an article of trade or merchandize. It is a mercantile term.

If a man carry his slave as a body servant, for his own use, and bring him back, it is not exporting.

Verdict guilty.