Williams v. Fambro

By the Court. Stephens, J., delivering the opinion. 1. We think the plaintiff in error was entitled to the continuance to get the benefit of Barron’s testimony, and that he ought also to have had the benefit of Walker’s testimony, which was offered but ruled out. We think the testimony of these two witnesses was material and admissible, so far as it related to their own general knowledge of the negro’s disposition, or to Mr. Fambro’s statements concerning his disposition, but not admissible so far as it related to previous particular acts of violence on the part of the negro, or to general reputation as to his disposition. To go into proof of particular acts of the negro, would be to open a collateral issue involving “ all things that he ever did.” Such proof coming collaterally, would come without the least notice to the opposite party, and therefore without opportunity to meet it by preparation. Proof by general reputation is obnoxious to the objection that it is hearsay. It is clearly within the general rule against hearsay, and we do not perceive that it is [235] within any of the exceptions. When reputation is in issue, as it may be in several classes of cases, it may be shown by general report, or rather the general report in that ease is the very thing to be proven,, and of course may be proven. But the thing to be proven in this case was, not the negro’s reputation, but his character, his disposition or nature, and especially his aptness for strife and his proneness to Insubordination — a fact which ought to be proven by witnesses who know it, or by the admissions of the opposite party. The fact, if proven from the proper sources, ought to have gone to the jury for two purposes, as tending to aid the theory of the defense that the negro was killed in an act of insubordination, and as tending to lessen the value of the negro, and so to mitigate the damages. To prove a proneness to insubordination, to be sure, does not prove an act of insubordination, but it does increase the probability of the story when there is, as there was in this case, other evidence suggestive of such an act. Such a story of rebellion, if told by a witness, or indicated by circumstances, ought to be more easily believed concerning a violent, turbulent negro, than concerning a meek, humble one. I think that any mind in search of truth in such a case, or finding itself in doubt, would want to know the character of the negro. The presiding Judge intimated that he would have allowed this evidence, if it had been shown that this character had been communicated to Williams before he killed the negro. His knowledge or ignorance has nothing to do with that bearing of the character which I have pointed out. The sole purpose for which character was admissible in this case on the question of justification, was from the negro’s general readiness for rebellion, to render more probable the evidence which tended to show an act of rebellion at the time when he was killed; and this probability is evidently not affected in the slightest degree by Williams’ previous knowledge. The light comes from the fad that the negro was one who was apt or likely to do such an act as the one imputed to him, and not from Williams’ knowledge of the fact. As to the bearing of the negro’s character upon the question of damages, it is very obvious that a negro’s bad character detracts from his value, and ought to lessen the damages for killing him. In this view the evidence need but be confined to his particular character for insubordination, but [236] ought to be allowed as to his bad character in general, for a bad character in any respect is one element affecting his value. 2. We agree with the presiding Judge, that a previous prosecution for the felony to a conviction or acquittal, was not necessary to the maintenance of this action. In the case of Neal vs. Farmer, 9 Ga. Rep., 555, this Court held that this doctrine applied only to such felonies as were felonies at common law, and that at common law no killing of a slave was felony, and therefore that an action to recover damages for the killing of a slave need not be preceded by a prosecution for the felony. We were invited by the argument in this case to review and reverse that decision. Without considering its original propriety, the decision ought to be maintained now. It was made nine years ago, and attracted the universal attention of the profession at the time. The legislature with full knowledge of the decision for nine years, not having changed the law declared by it, may fairly be considered as acquiesced in it. The great body of the common law derives its authority from decisions of Courts and legislative acquiescence in them. We adhere to this one. Judgment reversed.