McElhaney v. State

| Ala. | Jan 15, 1854

CHILTON, C. J.

The appellant was indicted under the fourteenth section of the fourth chapter of the Penal Code, which is as follows : “ Every person who shall hereafter harbor or conceal any runaway slave or slaves, or fugitives from their masters, or other person having charge of them, knowing that they aro such, such person, so offending, shall, on conviction, be fined not less than one hundred dollars, and not more than one thousand dollars, or be imprisoned in the penitentiary not more than two years, at tho discretion of the jury trying the same.”

The court charged the jury, that they must be satisfied that the slave was a runaway, and that McElhaney knew of that fact, and, so knowing it, harbored her; that the State did not insist upon the charge of concealing the slave ; that to constitute the act of harboring, it was sufficient if McElhaney, knowing her to be a runaway, supported and entertained her, or provided her with a home or place of residence, although she did “go about in the streets, and was seen by the neighbors.” To this charge the defendant excepted, and this exception presents the only question for our revision.

1. It is argued, that the proof did not warrant this charge; but it will be observed that the charge is affirmative, and all the proof is not set out. The rule in such cases is well settled, that we will not presume that such charge is abstract, but, on the contrary, that the proof fully warranted the charge-

2. But it is argued, that the indictment is for harboring and concealing, and that the charge warrants a conviction for harboring merely-

The statute uses the term in the disjunctive, “ harboring or concealing,” and if tho defendant is guilty of either, the offence is made out; but we know of no case which holds that the State is bound to prove both, in order to warrant a conviction of either, although both are charged. In Mooney v. The State, 8 Ala. 328" court="Ala." date_filed="1845-06-15" href="https://app.midpage.ai/document/mooney-v-state-6502614?utm_source=webapp" opinion_id="6502614">8 Ala. 328, the indictment charged that the prisoner did, unlawfully and feloneously, inveigle, steal, carry and entice away two negro slaves: Held, that, although these were charged in the same count, the State was entitled to convict the prisoner on proof of either. See, to the same point, Ben v. The State, 22 Ala. 9" court="Ala." date_filed="1853-01-15" href="https://app.midpage.ai/document/ben-v-state-6504972?utm_source=webapp" opinion_id="6504972">22 Ala. 9; The State v. Murphy, 6 ib, 846; Wharton’s Am. Crim. Law 165.

3. But it is further contended, that the charge is wrong, because it allows the jury to find a harboring without concealing. It is certain, whatever moaning lexicographers may attach to the term “ harbor,” that the Legislature intended, in the statute before us, to make two offences, the one harboring, the other concealing a runaway slave, knowing such slave to be runaway, <fcc. The plain object was, to withhold from slaves inducements either to run away, or to prevent their return to their masters after they had run away, by inhibiting all persons from sheltering, supporting, keeping, or protecting them, in such manner as that they could live apart and independently from their masters. Although the prisoner may not have concealed the slave, yet if, knowing her to be a runaway from her master, he fed her, or furnished her shelter and the like, he is guilty of a violation of the statute, if this was done to enable her to remain away from her master, or to deprive him of her service. This charge, taken in connection with the last charge given, very fully lays down the law, snd, we think, is wholly free from error.

Let the judgment be affirmed.