#### THE STATE *vs.*EDMUND MARTIN.

To constitute a capital felony in the case of stealing <tc. slaves, the taking and conveying away of the slave must be from *the possession of the owner-*The felony is not created by our Statutes, when, before the taking or carrying away, the owner has lost the. possession of the slave by the act of another, even though such act was procured to be done by the person, charged with felony, for a felonious purpose.

Neither the act of 1779, Rev. Stat., ch. 34, sec. 10, nor the act of 184&-9, ch. 35, constitutes a felony in such a case.

The case of the *State*v *Hardin,*2 Dev. and Bat., 409, cited and approved.

Appeal from the Superior Court of Law of Forsythe County, at the Spring Term, 1851, his Honor Judge Bailey presiding.

The prisoner was indicted for stealing a slave, Giles, the property of George W. Smith, and charged in fourteen counts. The last seven counts were a repetition, with no material alteration, of the first seven.

The first count charged, that the prisoner, with force and • arms, the said slave, the property, <fec., “ did steal and take and carry away against the form of the Statute,” &c. The second count charged, that the prisoner, with force and arms, <fcc., the said slave, &c., “feloniously, by violence, did take and carry away with an intention, the said slave to sell and dispose of to another, against the form of the Statute, &c.” The third count charged, that the prisoner, with force and arms, &c., the said slave, <fcc., “ feloniously, by violence, did take and carry away with an intention, the said slave *to*sell and dispose of to others, against the form of the Statute,” &c. The fourth count charged, that the prisoner, with force and arms, the said slave, &c., “ feloni-ously, by seduction, did take and carry away with an intention the said slave to sell and dispose of to another, against *158the form of the Statute,” &c. The fifth count charged, that the prisoner, with force and arms, &c., the said slave, &c., “feloniously, by seduction, did take and carry away with an intention, the said slave to sell and dispose of to others, against the form of the Statute,” &c. The sixth count charged, that the prisoner, with force and arms, &c., the said slave, &c., “ feloniously, by violence, did take and carry away with an intention, the said slave to appropriate to his own use, against the form of the Statute,” &c. The seventh count charged, that the prisoner, with force and arms, &c., the said slave, &c., “ feloniously, by seduction, did take and carry away with an intention, the said slave to appropriate to his own use, against the form of the Statute,” &c.

To this indictment the defendant pleaded not guilty.

The first witness introduced by the State was Edward Booker, who stated that in the latter part of October or November, 1850, he was passing on to the South, in company with his son Henry and another man, by the name of Null,, with two loads of tobacco, which was the property of a gentleman in Stokes, by the name of Hamlett: that they stopped for the night at a camping ground near the house of the prisoner, in the county of Davidson : that a horse in the' team of Null was taken violently sick, insomuch that they-could not leave till the ensuing Monday: that the prisoner, during Saturday night and the next day, assisted in procuring and administering remedies for the relief of the sick horse: that, during the time they were attending to the horse, two or three drinks were given to the prisoner by the witness: that he told the witness that he *“*liked his. looks,” and expressed himself as much pleased with him, asked him if wagoning was not a slow business, and being told that it was, said he could put him into a business he-could make money much faster, if he would be sworn ; that he had fine stock and could make him rich as Hairston the witness asked what sort of stock — if it tras horses:, he *159said no, they were worth from $>600 to $1200 a piece, and, by being smart, witness could make five or six hundred dollars in a few weeks : the witness told him he would like to *get*into any other way of making money faster that was honest: that the prisoner did not fully disclose his business or his plans, but the witness inferred from what had been said, what that business was, and told the piisoner, that he was obliged then to go on to the South, and on his return, which would be in five or six weeks, he would call and see him again, and that during his trip he would consider on it: that all the above conversation between him and the prisoner took place privately and not within the hearing of any other person ; and that, during a portion of if, the prisoner was excited with liquor : that on Saturday of the first week in December following, he again came to the house of said prisoner on his way home, and remained there till Sunday evening: that the prisoner asked him what determination had he come to, and, upon being informed by the witness, that he would go into it, the prisoner told him that he had several negroes out: that he could take the witness to them and show them to him: that they were at a distance from home — he could not keep them near him for fear of being suspected : that there were a great many fox hunters around him, and he had been frequently tracked by their dogs, and been compelled to stand in water up to his waist for an hour at a time in cold weather, to escape: that he induced the negroes to believe he was going to send them to a free State : that he was interrupted in his intercourse with the prisoner, by a man. by the name of Rains, who went there with him, who had a great deal of private conversation with the prisoner, and who, the prisoner informed, was also going to take off negroes for him: that before leaving, the arrangement was made for .the witness to return about Christmas and the prisoner would have a slave in readiness to go with him, which he was to take off and sell and divide the profits with the prisoner: that he *160went back to the house of the prisoner on Thursday evening after Christmas, was informed by the prisoner that he could not get things ready before Saturday night, and their plans were thwarted by the presence of another white man, who persisted in staying all night, although the prisoner used every effort to get him to leave ; on Sunday the witness went off again into the neighborhood and remained absent until Sunday evening, when he returned to the house of the prisoner; about one hour by sun he saw Jeff, at the prisoner’s, the prisoner gave Jeff a dram and he went off; after he was gone, the prisoner told him he had sent Jeff after the negro he was to let the witness have; the witness went to bed, and between midnight and day he heard some person come into the kitchen-end of the house, where the prisoner and his family stayed, he, witness, being in *the*other end of the house by himself: that he heard the prisoner and two others talking together; soon after the prisoner came to him with the negro, and said he was the one he was to take away, and his name was Giles: that he had had him six or seven weeks: that he must get up and get ready and be off as soon as possible : that it was not long till day : never saw Jeff again after he left in the evening : the prisoner told him to get his horse and go on by himself to the end of Thompson’s lane : that there were too many wagoners camping near the house and that Swicegood’s dogs, by whose house they had to pass, were very bad. and he was afra d, if Giles went with witness, they would be interrupted or stopped: that he knew a bye-way, which was nearer, and he would take Giles and meet him near the end of Thompson’s lane : that after waiting for some time at or near the end of Thompson's lane, about a mile from the prisoner’s, the prisoner came with Giles, said he had been bothered by Swicegood’s dogs: that he then delivered Giles to him and told him to be off — it was most day, and must be smart; had sent offtwo negroes before and had never heard from them again ; that he brought Giles to Salem, ex*161hibited him to Mr. Lash, and finding that the jail of Forsythe was not completed, carried him to Germantown and lodged him in jail, and immediately sent word to Smith where his negro was: that in all the passed transaction he was acting *bona fide*for the purpose ot detecting the prisoner, and not for the purpose of co-operating with him: saw Smith in Salem afterwards with Giles, the same negro he had committed to jail: that in a short time witness returned to the house of the prisoner for the purpose of getting another slave; was furnished by a friend, who was in the secret^ with $400 spurious money and a fictitious note for $300; returned to prisoner’s, paid him $200 and exhibited the note, told him he had sold Giles for $700, and arrangements were immediately set on foot to carry off another slave, that prisoner said was a blacksmith; prisoner expressed himself' well pleased with the result of the former trip ; that witness went to Mr. McDonald, who was a Magistrate in Davidson and disclosed to him what he had done and was then trying to effect, and also carried a letter from other friends: that he returned to the prisoner’s on Sunday night, found him in an ill humor; prisoner chained his horse to the smokehouse, told him he had deceived him, the money he had paid him was counterfeit, that he suspected he was about to betray him, that he would kill him that night, that he belonged to a Murrel clan and if he did not kill him some of the clan would, refused to let him have his horse; another white man, who was known to the prisoner, was present, who also expressed himself, that the prisoner had been treated badly by witness : that witness, becoming alarmed, left and went to a house in the neighborhood, where he remained all night: that he returned next day in company with one of the neighbors, sent for Mr. McDonald and had the prisoner arrested. The witness Booker also stated that he gave the prisoner spirituous liquors at each visit before they conversed on the subject.

*162The State then called several witnesses to confirm Baker’s evidence.

Wallis McDonald was then examined, who stated, that-Booker had related the whole affair to him at his house about four or five miles from the prisoner’s ; and that he told the same tale, as deposed to on the trial, with the ex-, ception that he stated, that the prisoner in the first conversation with him was drunk and on that account he did not press him to disclose himself more fully and that upon his return from the South, he, Booker, first spoke to and arrested the prisoner on the subject: that Booker staled his object was to detect Martin and get the reward, if any were-offered, for the negroes. He also stated, that Booker in this conversation told him, that the prisoner told him that Jeff, had brought Giles to his house.

The witness Richmond Swicegood testified, that he lived within three hundred yards of the prisoner’s house: that he saw Booker, who was a stranger to him at the prisoner’s house frequently, and on Saturday after Christmas saw the prisoner and Booker talking privately together several times: that believing that something wrong was going on, he determined to watch the house on Saturday night, which was very wet and rainy : that he slipped up near to the house and heard the prisoner endeavouring to get Wood away» who was the man spoken of by Booker: that, after a failure to get Wood off, the prisoner went into the kitchen house with his wife and son Henry, leaving Booker and Wood in the other house: that he approached the kitchen softly and got near a crack, when he could see and hear the inmates : that the prisoner, addressing himself to his son Henry said: “I never told your mother ’till yesterday what Booker was staying here forto which she replied: “ I could not tell what in the name of God Booker was up to beforethat prisoner then said, he was not after tobacco; that, by being smart he could make five or six hundred dollars in six or seven weeks; it was a dangerous business, but he did not *163know any better they could do; that his wife replied; she did not know that they could : that the prisoner then said, “ if I could just get to see him to-night it would all do yet; perhaps, it is better, if any harm should come of it, that he’s here. I’ll wait ’till they all go to bed and then I can go and get back before day, and I can prove by him that I was here when he went to bed and when he got up in the morning.” The witness stated, that there was a good deal of other conversation that he could not hear distinctly: that, being satisfied that something was going on, he sent for one of bis neighbors that same night to consult what should be doné, who did not come ’till next morning: that Booker left the prisoner’s next morning and he did not see him again during that visit.

' The State then called G. M. Smith, who proved, that he resided in the county of Davidson, about seven or eight miles from the prisoner’s, who resided in the same county : that his slave Giles left his employment against his will and without his permission, on the22d day of November, 1850; and he found him in Germantown jail the 8th day of January, 1851, and carried him home and sold him immediately: that on his way home from Germantown with Giles, he saw Booker in Salem, who also saw Giles with him.

The prisoner’s Counsel, on being asked, before Hamlett and McDonald were examined, whether the witness, Booker, was to be attacked, stated, that he should insist, that,, if Booker was innocent, the prisoner was not guilty ; otherwise, Booker was a particeps, and in his testimony to be commented on before the jury as such.

The Court was requested by the prisoner’s Counsel to charge the jury as follows :

1st. That, if the jury believed from the evidence, that the negro Jeff brought the slave Giles to the prisoner’s house for Booker, the prisoner was entitled to a verdict on the first seven counts, although he had gone for the negro at the request of the prisoner.

*1642d. That, if entitled to a verdict on the first seven counts, - as. the last seven counts conclude against the Statutes, the prisoner was also entitled to a verdict on them.

3d. That, taking the whole evidénce to be true, the prisoner in law should be acquitted.

4th. That, as the slave Giles ran away on the 22d of November, if the witness, Booker, on his return from the South, staid with the prisoner, gave him spirits, and renewed the subject to induce and ensnare the prisoner, acted throughout for the purpose on his part of catching a runaway slave through the agency of the prisoner, made drunk and insidiously led on by him, Booker was the principal and the prisoner only an accessory to his, Booker’s, operations, although from the effects of the liquor and the false promises of Booker, he carried the slave as and for the purpose disposed to.

5th. That, if Booker was not guilty, the prisoner was not.

This the Court declined; but charged the jury as fob lows

That the prisoner was indicted under two acts of the General Assembly — the one passed in the year 1779 and the other in the year 1848.

The stealing a slave (as well as the taking away and conveying away by violence or seduction with the intents mentioned) was embraced in both acts : That the only alteration, made as to the stealing of slaves, was depriving the felon of his clergy: That the taking and conveying away any slave or slaves, the property of another or others, by violence or seduction, with the intent to sell or dispose of to another or with the intent to appropriate to the taker’s use, was a felony created by the act of 1778: that it was not;a felony before at common law, but was made so by this act of the General Assembly; and that the privilege of clergy was taken away for these new offences, as well as the old one of stealing : That a construction had been put upon this act of 1779 *165by the Supreme Court: that the Court had decided, that, to constitute the offences created by the act, there must not only be a taking, but a conveying away the slave of another with the intent mentioned ; that the caption alone was not sufficient, nor was the conveying away alone sufficient, but to convict one, as a principal, he must not only take but convey away also : that, to cure this defect in the law, the act of L84S was passed, which enacted : “That any person or persons, who shall steal, or shall by violence, seduction or any other means, *either*take or convey away any slave or slaves, the property of another or others, with an intention to sell or dispose of to another or others, or to appropriate to his or their own use such slave or slaves, and be thereof legally convicted, shall be adjugded guilty of felony and shall suffer death without benefit of clergy.” That, under this last act, the crime would be complete by either taking a slave or conveying away a slave, the property of another, with an intention of selling or appropriating to the taker’s use: that either the taking or the conveyiug away with the intention would be sufficient.

The Court further instructed the jury, that they were to find the facts; and the prisoner was to be tried as if he were a white man: that they were not to suffer their minds to be influenced either by sympathy for or prejudice against, the prisoner: that they were to divest themselves of all prejudice on account of his color, and try the case as they would others, according to law and the testimony: That, if they were satisfied from the testimony of the witness Booker that, when he was on his way to the South, the prisoner at the bar proposed to steal or take by seduction a slave or slaves, the property of another or others, for the purpose of selling: that on his return home the same proposition was made by the prisoner, and the witness acceded to this proposition, and agreed, that he- wefild carry away the slaves which the prisoner might steal or could take by violence or seduction or other means,'an^ sell the same and divide *166the profits between them, and, in pursuance of this agreement, the witness Booker went to the prisoner’s house at the time mentioned by him, and the prisoner stole Giles, the property of George M. Smith, or took him by violence or seduction against the will of the owner, and did this either by his own hand, or through negro Jeff, or any other person ; or if they should be satisfied, that the prisoner did not take the slave Giles by his own hand, nor was Giles induced to come by a message sent by JefF or another, the said JefF, or the other acting as the agent of the prisoner, but the slave Giles was stolen or was by violence or seduction taken by JefF or another person against the will of the owner and brought to the prisoner, and the prisoner received the said Giles and carried him from his house to the place mentioned in the county of Davidson and there delivered him to the witness, in pursuance of the agreement entered into between them, that the said slave should be sold and the proceeds divided between them, that the prisoner would be gniltyand the jury should so find : and that this was the law, although they might be satisfied, that Giles was a rima way, and although the witness did not intend to act in good faith towards the prisoner, but intended to deceive him. having no intention to sell the slave, but to entrap the prisoner, with a hope that he might obtain such a reward as. the master might have offered for his runaway slave: that, if he had no hand in the actual taking of Giles, but, merely persuaded, commanded, or hired negro Jeff., and that negro Jeff, took him &c., Giles being runaway at the time, and! brought him to the prisoner, which would only make the- prisoner an accessory before the fact at common law, and the prisoner only conveyed him from his house to the place mentioned, he would be guilty under the act of 1848, if this was. done against the will of the owner, and with the intention) that the slave should be sold and the proceeds divided between them, although the witness did this for the- purpose of a reward, which the owner might have offered for his *167runaway Slave: that it was the province of the jury to determine upon the credibility of the witnesses: that it was insisted by the prisoner, that Booker was not worthy of credit: that there were many ways, by which a witness *might*be discredited: that it was insisted that,his deportment upon the trial was bad : that he was ready to answer for the State and reluctant to answer for the accused: that he had contradicted himself: that his story was’improbable and unsatisfactory : and that he had been contradicted by McDonald and Hamlett in parts of his evidence that were material to the issue; that he had sworn falsely, and that the jury could not place entire confidence in his statement. These views taken by the prisoner’s counsel were submitted to the jury for their consideration. The Court informed ■ them, that they were to judge of the facts : that it was proper for them to look at the deportment of the witness Booker, while under examination ; had he answered readily for the Stale and with reluctance for the prisoner? had he either suppressed the truth or suggested a falsehood ? had he contradicted himself? or had he been contradicted by others? all these matters should be deliberately weighed by the jury : that, if Booker was not believed by them, they could not convict: that it was a rule of law, if the witness was false in one thing, he was in all: that, if they should be satisfied, that Booker had sworn falsely and corruptly in one thing mentioned in the issue, they should reject the whole of his evidence and acquit; or if they should, from the whole of the evidence, have a reasonable doubt of the prisoner’s guilt, they should return a verdict of not guilty. The jury found the prisoner guilty. "

Rule on the State for a new trial overruled. Judgment, and appeal to the Supreme Court. '

*Attorney*General, for the State.

*H. W. Miller,*for the defendant.

*168Pea usosr, J.

In *"Hardin's case” 2*Dev. and Bat. 407, it is decided, that the taking and conveying away of the slave must *be from the 'possession 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 oivner 7*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, eonld 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 ap-propriateand less equivocal, by the use of the words, *procurers, or receivei-s,*or some terms, by which they were explicitly embraced, ns had'been done in analogous cases.”

The act of] 848, 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 offence, 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 *169or receiving him from one, who had before taken or conveyed him away, so the offence would be the receiving and caring away a slave from the possession oí one, who had *dispossessed the 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 offence 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 offence; 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 law-makers is expressed in plain and unequivocal *terms of enactment.*

There should be a *venire de novo.*

Per Curiam.' Ordered to be certified accordingly.