32 N.C. 536; 1849 N.C. LEXIS 156; 10 Ired. Law 536

December, 1849, Decided

PRIOR HISTORY:    Appeal from the Superior Court of Law of PERQUIMANS County, at the Spring Term, 1848, his Honor, Judge Settle, presiding.

The indictment charges that the defendant, on the 1st day of September, 1847, and on divers other days before the taking of the inquisition, did keep and maintain a certain common, ill governed and disorderly house, and in said house, for his own lucre and gain, certain persons, both men and wom-en, and white and black, of evil name and fame, and of dishonest and lewd conversation, to frequent and come together at unlawful times, as well in the night as the day, and on Sundays, and there to be and remain, drinking, tippling, and otherwise misbehaving themselves, and other evil practices to carry on, did unlawfully and willfully permit, to the common nuisance, &c., and evil example, &c.

On not guilty pleaded, the evidence was as follows: A witness stated that at Christmas, 1845, he went to a negro quarter on the defendant's plantation, and about 200 yards from his dwelling house, and there found a quilting going on and dancing by negroes; and that a daughter of the defendant was there at the time, and some of the negroes did not belong there--that he heard the noise of dancing some distance before he reached the house; but that he did not see the defendant nor know that he was at home. Another witness stated that he was once at the defendant's negro quarters, and found more negroes there than belonged to him, and that there was more noise than he had ever heard at any place.

Another witness for the State, named Roberts, deposed that on Christmas night, 1846, he and other patrollers went to the defendant's plantation between 8 and 9 o'clock: that for three-quarters of a mile before he reached the house he heard much noise in that direction; that they went to the negro quarter first and found several negroes dancing there; that they then went to the house in which Boyce lived, and found therein twelve or fifteen negroes, of whom one was fiddling, and the others dancing and talking loud; and that some of them acted as if they were drunk, and he smelt spirits; that Boyce was in the house, and with him were a neighboring white man named Hollowell, a brother of the defendant, named Baker, and a married daughter of the defendant and her husband, (all of whom were visitors,) and several children of the defendant, who lived with him and were enjoying themselves in the dance with the negroes; that several of the negroes did not belong to Boyce, but they all had papers to go to Boyce's, and yet were whipped by the patrol, except the fid-dler, who had been sent there by one of the patrol; that when the patrol seized the negroes to whip them, Goodwin, the defendant's son-in-law, had high words, and got into a fight with the patrol, but the defendant did not interfere.

Another witness for the State, named Simpson, stated that he was one of the patrol who went with Roberts at Christmas, 1846, to the defendant's; that he heard no noise until they got to the defend-ant's gate, about 200 yards from the houses, and that the defendant resided in a very private situation, not being within a mile of any public road. And another of the patrol stated that they bursted open the door and were in the house before the defendant knew they were on the land; that they immediately began to tie the negroes, when Goodwin remarked to Roberts that a person who acted as he was doing was no better than a negro, and that brought on a fight between them.

On the part of the defendant, Hollowell stated that the defendant, and his children his brother, son-in-law and daughter, and the witness were sitting quietly in conversation when the patrol broke into the house; that all the negroes belonged to the defendant except four, and that those four had be-longed to him and came there by the permission of their owners to pay a Christmas visit to their old master, and their parents and relations, who belonged to the defendant; that some of the negroes were dancing, but they were not drunk, and, indeed, they had no spirits, and made but little noise; that the defendant permitted the negroes to come into the house to dance one reel for the amusement of his children and visitors, and there was no disorder; and that he had lived within a mile of the defendant for many years, and was familiarly acquainted with the habits of his family, and never knew any disorder there. Baker Boyce gave the same account in substance.

The defendant then called five witnesses, all of whom had for many years, and still, lived near the defendant--some within a quarter, and the furthest within three-quarters of a mile--who stated, that they were at home on Christmas night, 1846, and were not disturbed by, nor did they hear, any noise or tumult at the defendant's; that they had not at any time heard any great noises there or more than is usual in families in the country, and those were upon such occasions as log-rollings or holi-days, and that the defendant's household was orderly, peaceable, and quiet.

The court instructed the jury, that, in order to convict the defendant, they must be satisfied, that he had done, or permitted others to do, acts in his house, which violated the public morals, or that he made, or permitted others to make there, such a noise and confusion as annoyed and disturbed the public; that, if they found upon the evidence, that the defendant had upon two or three occasions suffered white persons and negroes, of both sexes, to meet together at his house and fiddle and dance together, and get drunk and make a noise, so as to disturb the public, they should find the defendant guilty; and further, that, if they believed the witnesses for the State, they ought to convict him. The jury accordingly found the defendant guilty, and after sentence he appealed. 




                RUFFIN, C.  J. The conviction seems to be a hard one; and we own, we do not see enough in the evidence to support it. Up to Christmas, 1846, nothing appears to have been done at the de-fendant's house, tending to the corruption of the public morality. At Christmas, 1845, there was a quilting, as it is called, and dancing by negroes in a negro quarter, accompanied by such noise as arises from a negro dance; and it happened that a daughter of the defendant was seen there and that some of the negroes did not belong to the defendant; but why the daughter went there, or how long she staid, or what she did, or how many strange negroes there were, or that they were unlawfully there, or that there was any drunkenness or drinking, or anything else improper, did not appear. At another time it is stated that negroes not belonging to the defendant were in his negro quarters, and that a very great noise was made. But it is not stated when that was, nor that those negroes were improperly there, nor that it was at an unseasonable hour, nor what was the nature or occasion of the noise. The case is, then, brought down to the affair of Christmas night, 1846; and the question is, whether that constitutes the defendant the keeper or a disorderly house. According to the case of Mathews, 2 Dev. and Bat. 424, it does not, as far as the collecting of people and their drinking go; for it was there held, that a private person, living half a mile from any other house and at a distance from a highway, was not guilty of keeping a disorderly house, though on two occasions he took in company for pay, who sat up all night, played cards, and got drunk and committed affrays.

                 The criminality here, then, must consist, if in anything, in the assemblage of negroes and their dancing and thereby making a noise--for no other kind of noise or disorder is suggested--and in the mingling of the two colors together in the same house and dance, as stated by the witness, Roberts.  It would really be a source of regret, if, contrary to common custom, it were to be denied to slaves, in the intervals between their toils, to indulge in mirthful pastimes, or if it were unlawful for a master to permit them among his slaves, or to admit to the social enjoyment the slaves of others, by their consent. But it is clearly not so. The statute law recognizes the usage, and only forbids under a penalty any person from permitting slaves to meet on his plantation to dance or drink, unless they have the written permission of the owner. When the law tolerates such merry-makings among these people, it must be expected, in the nature of things, that they will not enter into them with the quiet and composure, which distinguish the gaieties of a refined society, but with somewhat of that hearty and boisterous gladsomeness and loud laughs, which are usually displayed in rustic life, even where the peasantry are much in advance of our negroes in the power and habit of restraining the exhibition of a keen sense of such pleasures. One cannot well regard with severity the rude pranks of a laboring race, relaxing itself in frolic, though they may seem to some to be at times somewhat excessive. If slaves would do nothing, tending more to the corruption of their morals or to the annoyance of the whites, than seeking the exhilaration of their simple music and romping dances, they might be set down as an innocent and happy class. We may let them make the most of their idle hours, and may well make allowances for the noisy outpourings of glad hearts, which providence bestows as a blessing on corporeal vigor united to a vacant mind. In the assemblage at the defendant's there seems to have been nothing more; no brawls, no profane swearing, nor other vicious disorder. It was but the dancing in a retired situation of the negroes of the plantation, to which the greater hilarity was probably imparted by the participation of a few others, who had been of the same family, and by the leave of their owners came, at the season of Christmas, to receive the affections belonging to the ties of kindred and former association. There was nothing contrary to morals or law in all that--adding, as it did, to human enjoyment, without hurt to any one, unless it be that one feel aggrieved that these poor people should for a short space be happy at finding the authority of the master give glace to his benignity, and at being freed from care and filled with glad-ness. Then, as to the ingredient, that the negroes were allowed to dance in their master's dwelling-house, and that some of the white people also joined in their dance. Taking the testimony for the State altogether, there is much question as to the truth of this last circumstance. But, supposing it to be so, we yet must say, though it be not according to the custom of this part of our country, that there is nothing in it forbidden by law--nothing that, of itself, can constitute a disorderly house. The presence of the family might be a safeguard against riotous conduct in the negroes, rather than authorize the inference, that it contributed to create disorder; and it is very possible, that the children of the family might in Christmas times, without the least impropriety, countenance the festivities of the old servants of the family by witnessing, and even mingling in them. As far as appears, it was but harmless merriment; which, indeed, is the character given to it by the concurring testimony of all those who lived nearest to the defendant, and knew best the nature and periods of these merry-makings.

PER CURIAM. Judgment reversed and a venire de novo.