This is an indictment framed upon the act of 1842, made to prevent the selling of vinous or spirituous liquors to a slave without permission of his master. The defendant was found guilty in the court below, and the case comes by writ of error to this court.
The proof was, that several persons suspecting the defendant of a violation of this statute, went in the night near to his house and sent a negro belonging to one of them with money and a jug and told him to.get some whisky. The witnesses were concealed. Defendant sold the whisky to the negro.
*332Upon this state of facts, the court charged the jury, “ that permission to the slave to buy spirituous liquors of any one will not satisfy the statute, which requires permission to be given to the seller. That the owner of the slave being willing, for the purpose of detection, for his slave to buy spirituous liquors of any one, will not justify the sale to such slave ; the permission must be given to the seller.” The defendant asked the court to charge the jury, “ that if the slave was furnished with the money to purchase the liquor by his master, and was instructed to buy the liquor from the defendant, then the sale thereof by the defendant does not make him guilty.” This charge the court refused.
The first part of the charge given by the court lays down the law too broadly, even with the qualification which seems to be contained in the other part. A permission to the slave to buy, in itself implies a permission to the vendor to sell.
But, in this case, the question arises, was there a permission given to the slave to buy, or was it merely an experiment to see if the defendant would sell without permission ? In other words, was it not a plan to detect the defendant in a violation of the law, by seeing him sell spirituous liquor without a permission to the slave to buy. The true point is, whether the master was willing for the slave to buy the liquor of the defendant, and gave him permission to do so. This point is for the determination of the jury. If, from the evidence, they should be of opinion that permission was given to the slave by the master, mistress, owner or overseer to buy the liquor, then the offense is not committed, though the permission were given to the slave and not to the seller. But if they should be of opinion that permission was not given to buy, but that the slave was sent to ascertain and fix the fact that the defendant would sell without permission, and the sale took place under these circumstances, then the offense would be consummated.
In the case of The State v. Anone, 2 Nott & M'Cord, 30, the law is thus laid down upon a similar statute : “ It has long been decided that the master’s delivery of any article to a slave, and standing by for the purpose of detecting an offender who may trade with the slave, does not legalize the trading.” “ When *333the owner goes in order to detect, and for that purpose merely eyes the traffic carried on, giving to the offender no real or apparent intimation of his assent, there can be no inference that he assents to the traffic ; and the policy of the law sanctions a practice so essential to the exposure of skillful traders.”
The object of the statute under consideration cannot be mistaken. It is to prevent the demoralizing influence of drunkenness and its attendant vices upon the slaves, which constitute so large a portion of our population. As one of the guards for the security and well-being of society, a traffic in this article with slaves is prohibited unless with the consent of the master. It is a traffic which it is hard to detect, and it would be singular if a resort to almost the only means of detection should have the effect to legalize the transaction. Such traffic, without the consent of the master, mistress, owner or overseer, is a breach of the statute; and the consent must be to a sale of the liquors, not merely to an experiment to detect a violation of the law.
For the error in the charge of the court below, the judgment will be reversed, and a new trial granted in accordance with the principles here laid down.
Cause remanded and a new trial granted.