State v. . Martin

| N.C. | Jun 5, 1851

In S. v. Hardin, 19 N.C. 407" court="N.C." date_filed="1837-06-05" href="https://app.midpage.ai/document/state-v--hardin-3656420?utm_source=webapp" opinion_id="3656420">19 N.C. 407, it is decided that the taking and conveying away of the slave must be from thepossession of the owner. The point on which the case turned was not whether taking from the possession of the owner or "conveying" away from his possession amounted to the same thing (about which learned men would scarcely differ), but whether the statute, besides having the effect of making it a felony to convey away a slave from the possession of the owner, could by a proper construction be made to have the further effect of creating a new and distinct felony where the slave was conveyed away from the possession of one who had previously, by stealing, violence, or seduction, or otherwise, dispossessed the owner, so that this new felony was not to involve an injury to the possession of the owner. That was the point. The Court held that the creation of a new felony, simply by the use of the word "or" in a very awkward connection could not be justified by any sound rule of construction, and that if the intention of the Legislature had been to make those who committed a subsequent asportation, after the owner had lost his possession, guilty as principal felons, "this intention would have been explicitly expressed in terms more appropriate and less equivocal by the use of the words procurersor receivers or some terms by which they were explicitly embraced, as had been done in analagous cases."

The act of 1848, which is now before us for construction, professes to be explanatory of the act of 1779; and the whole explanation consists in using the word "either" before "take or convey away." This does not obviate the difficulty in the slightest degree. We are satisfied that the draftsman of the act did not understand the point in "Hardin's case," otherwise he would not have supposed that the word "either" superadded could explain and show that the Legislature meant to create a new offense, so as to punish with death not only a conveying away a slave from the possession of the owner, but the procuring him to be so conveyed away or receiving him from one who had before taken or conveyed him away, so the offense would be the receiving and (169) carrying away a slave from the possession of one who had dispossessedthe owner, and by the usual analogies of the criminal law made himself the principal felon, the receiver being an accessory after the fact.

This misconstruction of the draftsman, we suppose, originated in his confining his attention to the doubt expressed as to whether the words "take or convey away" "do not require the interpretation that either constitutes the offense within the meaning of the Legislature." If he had taken a more comprehensive view of the subject he would have seen that the majority of the Court arrive at the conclusion that either does not constitute the offense, and that it was necessary in express and unequivocal terms to say whether it was the intention of the Legislature to make it a felony to convey away a slave from the possession of one who had before taken him from the possession of the owner and to put a receiver or procurer on the footing, not of an accessory, but of a principal felon.

As the decision in Hardin's case was acquiesced in, and the reasoning is not met by the word "either" introduced into the act of 1848, for it in this connection, in fact, means the same thing as the word "or," we do not feel at liberty to depart from the construction adopted in Hardin's case, especially in a matter of life and death, where there has been a distinct announcement that this Court cannot give to a statute the effect of creating a new felony, unless the intention of the lawmakers is expressed in plain and unequivocal terms of enactment.

PER CURIAM. Venire de novo.

Cited: S. v. Ruffin, 164 N.C. 417.

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