Phillips v. Towler's Adm'rs

• Decision Date: 31 October 1856
• Citation: 23 Mo. 401
• Parties: PHILLIPS, Respondent, v. TOWLER'S ADMINISTRATORS, Appellants.
• Court: Missouri Supreme Court

23 Mo. 401

PHILLIPS, Respondent,

v.TOWLER'S ADMINISTRATORS, Appellants.

Supreme Court of Missouri.

October Term, 1856.

1. In an action, under section 35 of article 9 of the act concerning crimes and punishments (R. C. 1845, p. 414), against the owner of a slave to recover damages sustained through the burning of a building, &c., by such slave; held, that a confession by the slave of the burning is inadmissible in evidence.

2. It is also incompetent in such a case to show that the remark was made in the presence of the owner of the slave, that the slave had burned the building and had confessed it, and that he (the owner) had made no reply or denial.

3. An action under section 35 of article 9 of the act concerning crimes and punishments (R. C. 1845, p. 414), against the owner of a slave, will survive against his administrators.

Appeal from Lewis Circuit Court.

This was an action against Edward Towler to recover compensation for injuries sustained in consequence of the act of a slave of defendant in setting fire to and burning a stable, &c., belonging to plaintiff. The defendant dying, the suit was revived against his administrators. On the trial to prove that the slave had set fire to plaintiff's stable, certain confessions made by her were admitted in evidence against the objection of defendant's counsel. A witness also testified as follows: “Mr. Robert Towler, son of Edward (the original defendant), entered the room where Mr. Edward Towler and I were, and, with a smile on his countenance, said, ‘does it not beat any thing in the world? that negro burnt Phillips' stable and has confessed it.’ Mr. Edward Towler made no reply; seemed to be cut down, and went out of the room.” Defendants excepted to the admission of this testimony. Defendants bring the case to this court by appeal.

Pratt and Lipscomb, for appellants.

A. H. Buckner, for respondent.

LEONARD, Judge, delivered the opinion of the court.

The slave's confessions were improperly admitted. They were mere second-hand evidence, and of the most exceptionable character. Such statements, if made by persons the most trustworthy, and under circumstances furnishing the strongest corroboration of their truth, could not be received. Legal evidence consists in facts sworn to by witnesses from their own personal knowledge, and excludes all personal information derived from others, however worthy of credit they may be. Here, however, the person from whom the information came was a slave, one forbidden by law to appear as a witness for or against a white person. And this principle of exclusion, which has been adopted into our written law, is grounded on the degraded condition of this class of persons, and the interest they may have to fabricate falsehoods and conceal the truth. It came from the Roman law, and has prevailed in all the European colonies in America, wherever slavery has existed. It is acted on in all the American slave states, although no enactment to that effect exist, and may be considered the customary law applicable to the institution of slavery. Where African slavery exists, the exclusion has generally extended also, as under our statute, to all individuals of the slave race, whether bond or free. (1 Har. & McHen. 562; White v. Helmes, 1 McCord, 430; Stephens on West India Slavery, 168.)

The attempt to bring these statements within the case of Fackler v. Chapman, (20 Mo. 252,) can not prevail. There, goods had been recently...