#### The State *v*. Jim, a Negro Slave.

From Cumberland.

Indictment against A. for breaking a dwelling bouse in the day-time, no person being therein, and feloniously taking therefrom a hank note of the value of five pounds, concludes against the *form of the statute:*A. cannot be convicted of a capital felony. Such indictment should conclude against the form of the *statutes.*

The statute of 1806, ch. 6, makes capital the offence of breaking a dwelling house in the day time, and feloniously taking therefrom *money, goods, or chattels:*a bank note was not the subject of larcency before the statute of 1811, ch. 11.

THE indictment charged *“*that Jim, a Negro slave, the *“*property of Neill Shaw, late of the county of Cumber-e< land, on the twenty-fourth day of September, in the year *“*of our Lord one thousand eight hundred and eighteen, *“*about the hour of one in the afternoon of the said day, *“*the dwelling-house of one Gurdon Savage, then and there “ situate, then and there feloniously did break and enter, *“*no person being therein, and one bank note therein be- *4*“*ing, of the value of five pounds, issued by order of the *“*President and Directors of the State Bank of North-Ca- *“*rolina, &c. &c. of the monies, goods and chattels, of the *((*sa-j Gordon Savage, then and there being found, then *“*and there in the dwelling-house aforesaid, feloniously *“*did steal, take, and carry away, contrary *to the form of “ the statute*in such case made and provided, and against *“*the peace and dignity of the state.” The Jury found a special verdict, affirming the guilt of the prisoner, provided the Court should be of opinion that he could be legally guilty of the felony charged in the indictment under the act of 1806, ch. 6; but if the court should be of opinion that the prisoner could not be legally convicted of the felony under that act, and it was necessary that the indictment should conclude against the form of that act, and also against the form of the act of 1811, ch. 11, making bank notes a subject of larceny, then they found the prisoner not guilty.*

*

 The act of 1806, ch. 6. declares, “ if any person or persons shall “ break any dwelling-house, shop, warehouse or other out-house thereto “ belonging, or therewith used, in the day-time, and feloniously take away “ any *money, goods*or *chattels,*of the value of twenty shillings or upwards, “ therein being, although no person shall be within such dwelling’-house, ‘‘ shop, warehouse or other out-house, or shall comfort, aid, abet, assist, “ counsel, hire or command any person or persons to commit such offence, *“*and being thereof lawfully convicted, or being indicted shall stand *“*mute, or peremptorily challenge more than thirty-five jurors, shall suffer “ death without benefit of clergy.”

And the act of 1811, ch. 11. declares, “ that if any person or persons shall feloniously steal, take and carry away, or take by robbery, any Bank note, Check, or Order for the payment of Money, issued by, or drawn on any Bank, or other Society or Corporation within this State, or within any of the United States; or any Treasury Warrant, Debenture, Certificate of Stock, or other public security: or any Order, Bill of Exchange, Bond, Promissory Note or other obligation, either for the payment of Money or the delivery of specific articles, being the property of any other person or persons or of any Corporation, (notwithstanding any of the said particulars may be termed in law dioses in action) such felonious stealing, taking and carrying away, or taking by robbery, shall be deemed and construed to be felony of the same nature and in the same degree, and with *5or without benefit of clergy, in the same manner as it would have been, if the offender or offenders had feloniously stolen, or taken by robbery, Money, Goods or Property of like value with the Money or specific articles due or expressed on the face of such Bank Note, Check, Order, &c,”

*5Taylor, Chief-Justice,

delivered the opinion of the Court:

The questions arising in this case are, 1st. Whether the breaking open of a dwelling-house in the day-time, no person being therein, and stealing therefrom a hank note, of the value of five pounds, he a capital felony within the act of 1806, ch. 6 *i*and, 2dly, if it be not, Whether the indictment is defective in not concluding against the form of both statutes mentioned in the special verdict.' — The words of the-act of 1806 are, *“*If any person or persons shall break any dwelling-house, shop, warehouse, or other out-liouse thereto belonging or therewith used, in the day-time, and felo-niously take away Money, *Goods*or Chattels, of the value of twenty shillings or upwards therein being, &c.” — Whatever could not be the subject of larceny when the act of 1806 was passed, did not become the subject of a felonious taking under that act. A hank note was considered as having no intrinsic value, not importing any property in possession of the person from whom it is taken. Although the words used in the act might have a more comprehensive meaning in a testament, in favor of intention, yet in a penal law they cannot be construed to embrace hank notes. As the felony, therefore, described in the act, is incomplete without the actual stealing of what the law deems *Money, Goods or Chattels,*the conviction under that act alone cannot be supported.

But the act of 1811, makes bank notes, subjects of larceny, and from both acts taken together, the guilt of the prisoner can only he inferred. Every indictment is presumed to be founded on the common law, unless some statute is indicated by the drawer of the bill, on which he means to prosecute. Nor can this be considered an unmeaning form, or useless refinement; for the accused might often be thrown off his guard, by supposing that he was to *6be prosecuted at common law, if afterwards he were pro-cee^ed against by *statute; or*by being referred to onesta-tute, and afterwards tried upon another, or upon both to-rpQ 0bServe the law in this particular, is in effect to comply with the declaration of the Bill of Rights, by apprising every man, who is criminally prosecuted, of the specific charges against him. It is accordingly an established principle, that if a statute create an offence, or alter the nature of an offence at common law, as by turning a misdemeanor into a felony, the indictment must conclude against the form of the statute.* And if an offence is made so, not by one statute only, but by two or more taken together, the reason is equally strong, that the accused should be referred to more than one statute in the indictment. In an information for not coming to church by such a time, *“*against the form of the statute,” and there being three statutes in this case, to wit, 1 Eliz. ch. 2. 23 Eliz. ch. 1. And 29 Eliz. ch. 6. And it not appearing which, it was adjudged ill.†

The Defendant is, by this indictment, referred to one statute : which shall ho examine to prepare his defence ? If he look into the act of 1806, he discovers that he cannot be convicted under it; for he has not taken any thing which was then the subject of larceny. If he look into that of 1811, he finds he may be convicted of a clergiable felony, by stealing a bank note, but not of a capital one, by breaking a dwelling-house and stealing it therefrom. Whilst he is preparing his defence under one law, the prosecutor is arranging the charge under another *$*and by the perplexity thus occasioned, an innocent man may be surprised into a conviction.

*

 2 Hale’s Hist. 192.

†

 Cro. Jac. 142.