Coleman v. State

• Decision Date: 31 March 1851
• Citation: 14 Mo. 157
• Parties: HANNAH COLEMAN v. THE STATE.
• Court: Missouri Supreme Court

14 Mo. 157

HANNAH COLEMAN

v.THE STATE.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

SHREVE, for Plaintiff. That in order to convict the defendant under this indictment, drawn upon the 19th section of Statute of Missouri, p. 402, it is incumbent upon the State to show: 1. That the defendant leased the premises in question. There is no evidence to establish this fact. 2. It must appear from the evidence that the house was leased for the purpose of a bawdy-house. That it was so kept as to be a nuisance to the neighborhood. A bawdy-house is a nuisance at common law, and our statute no way changes or alters the common law meaning of the term. There is no proof whatever in this case, that the house in question was kept as a bawdy-house, so as to be a nuisance. The defendant also points the court to the fact that the court below allowed the witness, Matthew Ripley, to substitute his individual opinion as to who exercised control over the premises, when they should only have permitted the witness to state the facts. It is everyway analogous to the point repeatedly decided by the honorable Supreme Court, that a witness cannot state whether the defendant is guilty or not guilty of the charge for which he is indicted. 3. The remaining point to which the attention of the court is respectfully invited, is the fact that the court refused to allow the witness, John Coleman, to be sworn as a witness in the case. By the record it appears that the witness offered to be sworn was a slave; that the defendant is a person of color, free, and in whose behalf, or against whom, Coleman might well be a witness. The objection insisted on by the State is suicidal, for it is admitted that there can be no marriage in contemplation of law between a slave and a free person of color, and yet insist that the relation of marriage can subsist so far as to exclude them from testimony for or against each other. Marriage is a civil contract which can exist only between persons who are free, and capable of contracting. A slave cannot contract. The court is referred in support of this point to Bouvier's Law Dict., Marriage, p. 125; Shelford on Divorce, ch. 1, § 1. It is true that society has impliedly permitted certain conventional arrangements to be entered into between slaves for the purpose of propagating their species (a doubtful clemency) but no rights are guaranteed even by society to slaves who are permitted to cohabit with each other, and the relations they may have borne to each other for years is entirely at the disposal of their masters, and this right is daily exercised by separating those quasi marriages, even where a long line of progeny has been the result. All of which is respectfully submitted.

LACKLAND, for The State. 1. This court can take no notice of the sustaining of the demurrer to the plea in abatement because the plea is not set out in the record, and it is impossible for the court to see whether any error has been committed. 2. The court erred in overruling the question asked the witness, Ripley, as to who was the owner of the property in question. If the witness knew the fact, he ought to have been permitted to state it. The means of acquiring such knowledge is immaterial. It cannot be contended that the State in such cases is bound to prove title in the defendant, as in a case of ejectment or the like. Because the ownership of the property is a matter collateral to the issue, and if it be required, it renders the law upon which this indictment is framed nugatory; for it would be impossible in almost every case for the State to show actual title by deeds, for in nine cases out of ten, perhaps, there is no such evidence of title. 3. The court did not err in...