31 N.C. 140 | N.C. | 1848
The prisoner was indicted in eleven counts. The first (141) charged that he, "a certain male slave named Jim, of the value of $10, and the property of William D. Cobb, feloniously did steal, take and carry away, contrary to the form of the statute," etc. Another count charged that he "did, by seduction, feloniously take and carry away a certain male slave named Jim, of the value of $10, and the property of William D. Cobb, with an intention to sell or dispose of said slave Jim to another, contrary to the form," etc. Another county charged that he "did by violence feloniously take and carry away a certain male slave named Jim, of the value of $10, and the property of William D. Cobb, with an intention to sell or dispose of said slave Jim to another county," etc. The other eight counts alleged a taking of the negro by violence, or by seduction, respectively, with an intent to sell or to appropriate to the prisoner's own use, without charging a conveying away; or alleged a conveying away by violence or by seduction, respectively, with an intent to sell or to appropriate, without charging a taking.
On the trial there was evidence that on 3 April, 1848, the slave ran away from the owner, Cobb, who lived in Wayne County, about nine miles from Goldsboro, where the prisoner lived, and there was a depot of the Wilmington Railroad; that about 10 o'clock on 23 April (as stated in the exception) the prisoner took passage to Wilmington and entered one of the cars, and two negro men also entered another car, in which negroes were generally transported, and after going about two miles the prisoner paid his own fare and that of the two negroes to Wilmington, and they proceeded to that place in the train; that about 10 o'clock of 23 April, just after the cars arrived from Goldsboro, the prisoner, who was then unknown to the collector of the port, took passage on board a steamer belonging *107 to the line, to Charleston for himself and two negro men, (142) and signed a manifest, describing them, in the name of "John Williamson"; that in due course the steamer would arrive at Charleston in time for a passenger to reach Hamburg on the railroad from Charleston to that place in the night of 24 April; and that on 25 April, 1848, the prisoner sold the negro Jim and another negro to one Trowbridge in Hamburg, the prisoner then calling himself "John Smith"; and that in October following, suspecting that the negroes had been improperly carried away, Trowbridge brought them back to Wayne, and Cobb claimed Jim as his, and he was identified by others.
The prisoner called several witnesses to establish an alibi, and their evidence was left to the jury on the point.
The counsel on the part of the State contended that if the jury should believe that the slave was in the possession of the prisoner twenty days after he ran away, then, in the absence of evidence to rebut it, the law raised a presumption that the prisoner had stolen him or feloniously taken him by violence or seduction.
The counsel for the prisoner, on the other hand, insisted that, as the slave had run away, the owner had lost his possession, and that, as lost property, he could not be stolen, especially if the prisoner did not know the owner; and there was no evidence that he did know the owner, or even that the negro was a slave.
The prisoner's counsel further insisted that the prisoner's conveying away the slave from this State and selling him would not authorize his conviction, but that he must also have taken him feloniously; and that there was no evidence from which the jury could infer that the slave was stolen or was taken by violence or seduction by the prisoner from the possession of the owner; and, even admitting a runaway slave to be in the possession of the owner for the purposes of this indictment, yet that, for aught in the evidence, the slave might have been and probably was stolen or taken by some other person (143) and delivered to the prisoner at Goldsboro; and that in such a case the prisoner could not be convicted, because the jury ought not to be allowed to guess how the fact was.
The court instructed the jury that to raise a presumption that the possessor of stolen property had stolen it, the possession must be so recent after the theft that the possessor could not have well come by it unless he had stolen it himself; and that, when the property was a negro man, who had run away twenty days before the possessor was first seen in possession, the *108 time was too long for the court to lay it down as a rule of law that the possessor was to be presumed to have been the taker; and in such case it was to be passed on by the jury, as an open question of fact, upon the evidence.
The court further instructed the jury that to justify a conviction of the prisoner they must find both a taking of the slave by him from the owner and also a conveying away, for the two acts must concur in order to constitute the offense; that in this case the color of the negro raised a presumption to every one that he was a slave; and that stealing, or taking him by violence or seduction, and conveying him away, with intent to sell or dispose of him, was a felony within the statute, though the negro was a runaway at the time and the prisoner did not know the owner; and that it was for the jury to determine, upon the evidence, whether the prisoner did in fact steal or take the slave by violence or seduction and convey him with the intents charged; and that if the prisoner met with the slave while he was a runaway and then took him by violence, or seduced him to go with him with the intent supposed, that would be a taking within the act; and that if the prisoner, holding himself out as the owner or as the person having the charge of the negro, caused him to get into the cars and paid his fare and thereby enabled him to pass along the (144) railroad, that would be a conveying within the act, although the prisoner was in one car and the negro in another. And the court further instructed the jury, in reference to the manner in which the prisoner might have come into possession of the slave, that if the prisoner had an accomplice, who stole or took the negro and brought him to the prisoner, and the prisoner's part was then to convey him away and sell him, there would not be a stealing by the prisoner, nor a taking within the statute. But that if the prisoner got some agent to carry messages to the slave, as a go-between, and in that manner seduced the slave to come to him at Goldsboro and get into the cars, the agent or go-between not having taken possession or any control over the slave, then that would be a taking by the prisoner; and that it was for the jury to decide from all the evidence whether the prisoner himself took the slave or seduced him by messages sent by an agent to come to him and then took him, or whether the slave was taken by another person and delivered to the prisoner; and that if they were not satisfied either as to the taking of the slave by the prisoner in the modes mentioned or the conveying away by him with the intents charged, they ought to find the prisoner not guilty. But if the jury should find such taking and conveying by the prisoner, inasmuch as there were *109 counts in the indictment to meet the different aspects of the case, it was unnecessary for the jury to decide in which particular way it was effected.
The prisoner was convicted and, after sentence, he appealed to this Court.
Under the instructions it is to be assumed that the prisoner did not know the negro belonged to Cobb, though we think it might well have been left to the jury (145) that he did. The residence of those persons within nine miles of each other in the same county, that of the prisoner being at a very public place, and the extreme probability that the prisoner, if before ignorant, would inquire and learn from the negro who his owner was, and where he lived, in order to shape his course so as to avoid him, would seem to afford a fair presumption that the prisoner had information in whom the property was. It is, however, now to be taken otherwise; and then the question is, whether a slave, under those circumstances, can be the subject of larceny. The Attorney-General argued, indeed, that if that be not so, yet under the statute the offense of taking by violence or seduction and conveying away, with the intents mentioned, is constituted without any reference to the condition of the slave as being in the owner's actual possession or a runaway at the time. But the act applies the words "steal" and "by violence or seduction take and carry away" to the same subject, namely, "a slave, the property of another"; and, therefore, if a runaway slave be not the property of another, so as to be the subject of stealing, we suppose he cannot be deemed his property, so as to be the subject of a taken by violence or seduction. This point has not been distinctly presented before so as to be directly decided. But it is by no means new, and has been involved to some extent in other cases, so as to elicit opinions on it. It seems to us, when it was held in S. v. Hall,
It was further argued that, supposing the slave the subject of larceny or of a taking under the statute, there were other objections to the conviction. It was said, first, that the court ought not only to have refused the instruction asked for the State, but ought to have given an instruction that a possession twenty days after the negro ran away was no evidence of a taking by the prisoner. The argument is fully answered by the fact that no such instruction was requested, and the court was not obligedex debito justitial to give it. But, in truth, it ought not to have been given; for the possession of a stolen thing is evidence, to some extent, against the possessor of a taking by him. Ordinarily, indeed, it is stronger or weaker in proportion to the period intervening between the stealing and the finding in the possession of the accused; and after the lapse of a considerable time before a possession is shown in the accused the law infers not his guilt, but leaves that question to the jury under a consideration of all the circumstances. But in the case of a *112
runaway slave the possession can be called neither recent nor remote, because, although the negro may have been long run away, it does not appear when he was taken by the prisoner or any one else; and, therefore, the jury must judge from the (149) attendant circumstances, coupled with a possession of the prisoner, and the fact that a possession is shown in no one else, when the slave was taken and by whom. In this case the negro was never seen from the time he ran away until the night he was put into a car by the prisoner for transportation to a distant place, to which he was carried with all speed by the prisoner, who there under a false name sold him. Considering the subject to be an intelligent being, from whom such information might be obtained as would lead to the obtaining of competent evidence of a previous taking by some one else, if the fact were so, and that no such evidence is produced, nor likelihood of the fact shown, and considering the manner in which the prisoner proceeded on his journey and in the sale, this is not only not a case in which there was no evidence of a taking by the prisoner, but it is one in which there is no evidence of a taking by any other person and a high probability of a taking by the prisoner. In all cases of presumption from possession and time much often depends on other and minute circumstances. We think, therefore, that the position taken at the bar cannot be maintained, that there could not be a conviction without distinct evidence of the taking by the prisoner himself, inasmuch as the taking might have been by some one who delivered the negro to the prisoner. If that were true, it would be impossible to convict any person of stealing a runaway, but upon the evidence of an accomplice; for, being moral agents, they may be seduced and got into possession with such privacy as to render it impracticable otherwise to establish directly the exact time or the precise means of effecting it. The court went far enough in "allowing the jury to guess," without any evidence to the point, that the negro might have been delivered to the prisoner, and so was not taken by him; and we think the complaint on the part of the prisoner is entirely unfounded, that the court submitted to the jury the consideration whether the prisoner (150) might not have prevailed on the negro to come to him by message through an agent; for, although it be true that there was no proof to that point, and therefore it was not strictly proper to leave it to the jury, yet the prisoner has not right to complain of it, since he was the cause of it; for there was as little proof or probability that the prisoner, as he contended, had received the negro from another person; and, therefore, when the court, at the instance of the prisoner, left the *113
inquiry upon this last point to the jury it was not improper to enable them to distinguish between the case of a delivery of the negro to the prisoner by one who had taken and acquired full dominion over him, and that in which the prisoner was the first taker, though enabled to become so by means of messages through a person — another slave, for example — who merely delivered them, without aiming at or acquiring any dominion over the slave for himself. The position laid down to the jury was correct in point of law, according to S. v. Hardin,
It was also insisted that there was error in telling the jury that it was not necessary for them to decide in which particular way the taking by the prisoner was effected, inasmuch as some of the counts are defective; for, it is argued, the case is not within the rule that there may be judgment on an indictment containing defective counts, if there be a good one; because that proceeds on the ground that there was evidence to authorize a conviction upon each and all of the counts, whereas, here, the jury were told, it is said, that they might convict upon all, if they thought the prisoner guilty upon any one. If that be true, there ought to be a venire de novo, certainly; for, unquestionably, the eight counts are bad in which a taking (151) without a conveying, and a conveying without a taking, are respectively charged. But it is clear that the supposed error was not committed, for the court explicitly put those counts out of the case; in the very beginning of the charge, by telling the jury that the acts of taking and conveying must concur to authorize a conviction. The meaning evidently was, and the jury could not have mistaken it, that if they found a taking of the negro by violence or by seduction, and also a conveying away by the prisoner, with the requisite intents, then it was not material that they should find in which of the modes the taking was effected, but the verdict might be general. The instruction, therefore, plainly applied only to the counts which charged the stealing, or the taking by seduction and conveying away, or the taking by violence and conveying away; all of which are good. It assumed that the jury should be satisfied that the prisoner was guilty in one of the modes well charged; and, if so, it was manifestly of no consequence whether the conviction was on any one or all of these counts, since the offenses were of the same grade and the punishment the same. The instruction might relieve the jury of some trouble in their investigation, but could work no prejudice to the prisoner. *114
Some objections were taken to the insufficiency of the evidence of the identity of the slave of Cobb with the negro carried on the road, and also the apparent discrepancy in the statements as to the times of leaving Goldsboro and Wilmington. But they were points arising upon the evidence, and were proper for the jury and not for this Court.
A motion has also been made here in arrest of judgment on several grounds. One of them is that the indictment does not apply the term "feloniously" to the violence and seduction, as well as to the taking. But it clearly does, for the (152) expression, that one "by violence feloniously took," is the same as that he "feloniously by violence took," it being impossible that the thing can be taken feloniously by violence unless the violence — the means of taking — be felonious.
Another is that is not directly averred that the negro was the property of Cobb, as by the words, "then and there being the property, or of the proper goods and chattels of," etc., but only adds the averment after laying the value, "and the property of," etc. But both forms of expression have the same meaning, and they are used indifferently. This indictment follows in this respect that in S. v. Sparrow,
A third ground is that the indictment is uncertain and repugnant in charging an intent to "sell and dispose of" the slave, as a disposition may be by other means than that of a sale. But in that respect the indictment is sustained by the precedent in S. v. Haney,
Upon the whole, then, the Court sees no error in the record. Indeed, we have had no difficulty whatever but on the question whether a runaway slave be the subject of larceny or within the act of 1779. If the former, he certainly is the latter. But we own that, were it res integra, we should hesitate to hold that the common law could recognize such a thing as the larceny of a man, and perhaps feel bound to leave it to the Legislature to make a fit provision for the case. But for upwards of half a century it has been held by the highest tribunals to be law here, and has been tolerated and affirmed by the Legislature as a salutary security of a very important portion of the property of the citizen; and therefore the Court now feels bound to follow up the principle thus established.
PER CURIAM. Certificate ordered to the court below.
Cited: S. v. Groves,
(153)
