HILLSBOROUGH,

APRIL TERM, 1795.

#### State *v.*Bromfield Long.

Haywood and VYmdiams, Judges, were of opinion that the takingwhich is to constitute a felony, must be a trespass. A6he and Ma-cay, Judges, thought a borrowing with a fraudulent intent, might be the ground of a felonious act.

At this term the Defendant was indicted in the common form, for stealing a mare of one *Samuel Parks,*in the county of Randolph.

It api>ears upon evidence on the trial, that the Defendant was a stranger to Parks, hut came to his house some time about the sixth of December last, offering himself to be employed asan oterseer; and after re-*178majning on *Parks’s*plantation three or four days, he borrowed the mare in question of *Parks,*to ride to the house of one Candles, who lived about four miles from *Parks's,*in the same county ; and he called at *Candles’s*accordingly, riding the mare 5 but from *Candles’s*went directly off, and in two days and a half arrived at a house in the county- of Lincoln, at the distance of eighty miles from *Candles’s.*Upon tliis state of the evidence, it was insisted by *Jones,*Solicitor-General, that the Defendant was guilty of felony — he argued, that tho* there were some *dicta*in the old books, and *even*some adjudge(| cases, which make a taking that would amount at ,least to a trespass, to be an essential ingredient in the constitution of felony, yet that the more modern authorities have decided in many instances, and uniformly, that a borrowing or hiring with a fraudulent intent not to return the property to the *owner,*but to convert it to his own use, and a subsequent going off with the property, and selling it or not returning it to the owner, will, a*mount to felony;*and that in such cases the Court will charge the jury, to enquire, whether the borrowing or hiring was with such fraudulent intention ; and if they found il to be so, then to find the prisoner guilty. 1» support of this position, lie cited l *H. P. C.*90, s. *5,*91, *s.*10, *Kelyng*24. 81, 35, *Leach*95, 231, 266, 355, 213. *Mr. Potter,*for the prisoner, e *contra,*insisted, that a felony could not be grounded on a delivery by the owner to "the borrower, but il must he a taking without the consent of the owner. He cited 4 *Bl. Com.*230, 1 *H. H. P. C.*504, 506, 50?. And with respect to this point, there was some difference of opinion in the Court, and in their charges. Judge Macay seemed to incline that it was felony. Judge Haywood, that it was not. And the jury found a special verdict as follows : “ The jurors now here sworn, upon their oath say, that on the sixth day of December, in tiie year of our Lord, 1T94, in the comity of Randolph, in this district, *Samuel Parks, sen.*was in possession of the mare in the indictment mentioned, as of his proper goods and chattels ; and that on that day the aforesaid *Bromjield Long,*in the said indictment mentioned, did borrow the aforesaid mare of the, said *Samuel- Parks,*to ride to the house of *John*Candles, living in the aforesaid county of Randolph, about four miles fr in the house of the said *Parks,*a>.d that he, the said *Bromjield Long,*was to have returned the mare to *179the said *Samuel*Parks, after riding her (hither; and the jurors aforesaid further find, that the said *Bromjielil Long*did get the said mare into Ins possession hj >he means aforesaid, avid did ride her to the house of 'he said Candles» and that he did not return her to the said *Sam-nel Parks;*bin forthwith rode the said mare into the comity of Lincoln, to the distance of eighty miles from the honse of the said *John Candles,*and títere sold Ir-rto one *Andrew Hoyle,*as his own property. The jurors further find, that the said *Brnmjield Long*did tint take the said mare, or get her into his possession otherwise than is herein before stated. And the jurors aforrsvxd further say, that they do find that the said *Long,*at ’he time when he so got possession of the aforesaid mare as before stated from the said *Parks,*did the same with a fraudulent intention not to return the said mare to the said *Parks,*but to sell and dispose of her as aforesaid ; but whether upon the facts aforesaid found, the said *Bronifield Long*be guilty of the felony stated in the indictment, the jurors aforesaid now here sworn are altogether ignorant, ant! pray the advice of the Court here thereupon; and if the Court shall he of opinion, upon the facts above stated, that the said *Brmnjield Long*is guilty of the said felony, then the said jurors do find him guilty in the manner and form as slated in the indictment ; but if upon the aforesaid facts above stated, the Court here shall be of opinion that lie is not guilty, then the. jury say that he is not guilty.”

This special verdict afterwards in this term was argued by *Mr. Jones.*f>r the State, and *Mr. Potter,*for the prisoner. *Mr Jones*cited the. same cases as before.— He observed,-that one of the Court 3n giving the charge, had stated to the jury, that the authorities which went to implicate the prisoner in tin* guilt of felony, were modern cases ; that the eldest of them was in 1775, and that many of them were since the revolution in this country j that all the cases previous to these cited from Leach, were the other way ; and that in these, cases the Court had gradually departed from the ancient law, and the law itself had thereby gradually become more and more severe, and this was owing to the circumstances of the country in which they were adjudged, the lower classes of the people there having none, or hut little property, and being *numerous;*the higher orders on the other hand being rich, having preponderating influence in the *180government, and regardless of the other orders, hadKpre-vailed in extending the security of the law.for the protection of property ; that perhaps also, property in that country being of more difficult protection, in proportion to the poverty and the number of the poor, was one reason that had its influence in effecting these, changes ; and that as the same circumstances do not exist here, there Is no necessity for the same rigour ; ami that the old law, as laid down in *Hale*and the other books cited for the prisoner, ought to be adhered to — as to which re~ marks, he said lie would observe, that these new cases are not introductivo of any new law, or any alteration of the old, they only ascertain with more precision what the old law really was, and that one of the cases adduced to establish the doctrine he contended for on the part of the Suite, was cited from *TCdyrig,*in the time of *Charles the*second, 81, and was founded on a decision in the time of *Edward the third;*and as to the conclusions drawn from the comparative circumstances of England and this country, if there wore fewer temptations to commit frauds here than there were there, there was more turpi» túde in committing them here than there, and of course the crime should be. treated with more severity here, — > He concluded with praying judgment of death against the prisoner.

The Court thought, as there was a division in the opinion of the Judges now present, it was proper that this special verdict should undergo the consideration of all the Judges: they therefore ordered the prisoner to be recommitted, and that the Clerk of this Court transmit a copy of the special verdict to each of the Judges' of this ÉjState j and that they be requested to return their opinions to this Court at the next, term.

At the next term, October, 1795, the opinion of all the Judges was had on this special verdict; the Judges Ashe and Mac ay were of opinion it was felony ; Win-XHAMs and Haywood that it was not; and the prisoner was recommended to mercy, and obtained his pardon.

Note. — The criminal code above all others should leave nothing to the discretion of the Court or jury, but should be regulated as far as the nature of things will admit, by certain and hsed rulos, not difficult to be understood, and incaoable of being construed away. The rule laid down in *Coke, líale,*Hawkins, and *Blackstone,*that there must be a taking *invito domino/*and that there can be no felony without a trespass, is a plain rule comprehensible by every capar ity, and in its nature not easy to be misconstrued — it leaves no latitude to the Judge, nor any *to*the jury. The plain enquiry is, a tortious taking — -but *181should the question be, did he borrow or hire with an intent to steal ? That being an act of the mind, and to be discovt red by circumstnn-ces only, leaves the fate of the prisoner entirely in the discretion of the Court and jury. In the case of a man of good character, or one they were inclined to favor, a bmrowmg and selling aft.rwards us his own, might easily be deem, d innocent, or at least excusable —he might b( supposed to do it, with a design to make a good tv rgain for the owner, and to deliver the money to him; or from confidence of his assent to the act when made acquainted, it were ho acquainted with the circumstances with h determined the coaouct of tho borrower ¡ud the like ; when before the same Court and jury, another of but indifi'-reut character, or where they werehiot disposed to favor, for borrowing and then selling, or lor burrowing and not retu-ning, might be sentenced to death ; which difference, of decision would be owing to no other circumstance, but that of tho discr-tion exercised by tiie Court and jury. But this discretion drawing tiie lives of men into its voitex, can never have place it the old rule, he adhered to. The rule contended for on the part of the State, vests an arbitrary power over tile lives of the citizens in the Court rittd jury— i power that ought not to be ve sted any where — which it is for the honor of the Court to disown ; and which, in whatever form or shape it may endeavour to insinuate itself, should forever be rejected with manly firmness by the Judges of a iree country. The discretion of tile Court is the mortal enemy of all safety and securty to individuals.— It is the engine that all governments proiesstng to.be regulated by laws, have used to elude them, win n the oppression of an individual is the object. B-sides, the old authorities are foupded upon better reasons than the cases cited from *Leach*— laws are, or ought to be, ri. gorotts, only in proportion to the magnitude of offenc'and the difficulty there is in preventing them ; but w'th reasonable cure in the owner, an offence of this kind can never happen — let Him not lend his property to a man he does not know, or in whom he cannot safely confide, and he wi 11 never be dc coived in this maimer ; but if be will lend it to a stranger he does not know, and that stranger deceives him, he should hlame his own irnprudet.ee. — he has coivti muted to the deception hirnsclf, and he has n<) right to expect tho law to animadvert with the same severity on the conduct of the deceiver, as if himself had been perfectly passive. The man who has not trusted his prop r(y into precarious hands, and who does what is usual to secure it, and yet has it invaded by a taking away without his consent, is surely more to be regarded, than the man who has ient it. In the one case the owner contributes in no shape to the offence, in the other it could never have been committed had not the owner put it in the power of die prisoner to commit it; and surely in point of reason and good sense, there is amply sufficient to warrant tbt distinction made in the old cases. I did say to the jury, at'd I believe still, Shat the modern cases cited on the part ot till- State, have grown gradually into still greater and greater severii:, owing to the circumst-iices of England and the British people at the tunes when they leek place. In every country as wealth accumulates poveity also increases, still forming a wtd< r separation and greater .lift-nee between the diffet i nt classes ; and the natural consequence of this ev.ry where is, that ihe hand of government clinches the sword of vengeance ag«in»t the violation of tiie rights of propel ty vv.th the stronger grasp, .-ltd strikes with the less compassion; and it is obviously- remark. b‘e, that each of the succeeding cases of those cited, has gone still further and wider of the old rule titan the former ; so much so, that it the latter of them should be presented as a proposition, without the former, to fa-*182milinrize the mind and prepare it for the reception of the latter, we should bfc startled and reject it without hesitation — such for instance as that where a man hired a post-chaise, and not returning it, was taken up a year afterwards, and convicted of felony. This at first view would appear horrible — how many circumstances might have occurred to prevent.the return within that time — the very negligence and idle disposition of the man might have caused the delay. The departure from the old rule when first made, seemed jo come so near it, that the departure did not strike the mind with much force — the next departure came so near the last precedent, that that was not much, remarkable, until at length the old rule becomes entirely laid aside, and the modern authorities boldly pronounced to be the genuine rules, and to be properly explanatory and corrective of them — then is the time when the life of the subject or citizen is exposed to the attempts of evil men, and títere is no helper at hand to protect them — -this is the progress of a departure from ancient well established rules. The smallest reflection upon it is sufficient to convince us how dangerous an experiment it is, either to abandon them, or to extend them by construction to cases not manifestly and obviously within them. This is the only operation the cases cited have upon my mind, and they confirm me in the opinion that the old rule should be most sacredly regarded. If we once begin to depart from it, w® shall gradually include in the definition of felonious stealing, acts that are at present deemed very far from its comprehension, until at length perhaps, the boundaries between fraud and felony, shall be no longer discernable ; and the lives of many citizens sacrificed improperly, before the law can be again brought back to it- ancient simplicity and certainty. ' It is true the case in *Kelyug, p-*81, does -coolcl with the cases in Leach„* but the case in *Kelyng*is but his own extrajudicial opinion ; and that opinion too against an adjudged ease report, d by himst If in page 24; in which latter case, he himself and two other Judges concurred— This opinion of his seems not at all to have been noticed as law, oras creating a doubt with respect to the law in subsequent authors ; and therefore there is abundant reason to treat it at this day, as the solitary effusion of his imagination ; he himself in his judicial capacity-has contradicted it, and all following authors of any celebrity, have passed it by in silence.

Note. — Vide *Dodd*v. *Hamilton & Hamilton,*N. *C. Term Rep.*31.