#### The State *v.*Archibald Johnson,

From New-Hanover.

The act of 1825 was passed to prevent the asportation of slaves by persons having'those facilities to do it, which a connexion with a ship gives. The act of concealing a slave on ship board, with the intent to carry himfrom the State, by a person having no connexion with that ship, is not within the mischief. An indictment on the statute, which did not charge the prisoner to be in any way cón-nected with the ship in which the slave .was concealed, was- therefore,held to be fatally defective.

The prisoner was tried upon an indictment consisting of four counts — upon the first and third of which only, he was convicted.

The first count was as follows :

“ The Jurors for the State, upon their oath, present, that Archibald Johnson, late of New-Hanover, on the twenty-first day of February, in the year of our Lord one thousand eight hundred and twenty-seven, he, the said Archibald Johnson, then being within this State, on board a certain vessel called the Sally Ann, with force and arms, in the County of New-Hanover, feloniously did conceal, on board the said vessel, a certain Mulatto Slave, named Frederic ; the said Mulatto Slave then being the property of a citizen of this State, to wit, the property of one Edward B. Dudley, without the consent in writing of the said Edward B. Dudley, the owner of the Slave, previously obtained, with the intent, and for the purpose of carrying and conveying the said Mulatto Slave out of this State ; contrary to the form of the statute in such case made and provided, and against the peace and dignity o the State.”

The third count was exactly like the first, with the exception that it charged that the prisoner *“ did convey on board”*instead of “ *did conceal on board.”*

After verdict, his honor Judge Ruffin, upon a motion in arrest of judgment, delivered the following opinion, which is extracted from the case sent to this Court:

*“*But the Court, considering the indictment, doth deem it insufficient to authorise sentence of death upon *361ibe prisoner, because it charges only, that the prisoner, being in this State, *on board a certain vessel,*called the Sally Anri, but without charging that he was the master or the cook, or a mariner of some other description, then on board as such. From the whole act. taken together, it is thought to extend only to seafaring persons, and those belonging, or attached to the particular vessel to which the slave is conveyed, or in which he is concealed, and not to embrace even seamen forming the crew of another vessel, much less mere landsmen, though they may convey and conceal a slave in a vessel, and, in so doing, may get upon, or into the vessel,-so as to be literally* *on board of her.*Casual, or wrongful, or temporary personal presence on board, does not either create the temptation, or present the facility for executing the crime, of which the statute enacts the punishment. Only a permanent occupation of the vessel, as a matter of right or duty, either as commanding or'serving the ship, or controlling the cargo, or taking passage for a voyage, accompanied with actual personal presence in conveying, receiving or concealing the slave, is *such a being on board,*as is within the meaning of the act. This indictment, although it follows the words of ihe statute, by alleging that the prisoner *being on board,*&c. contains no averment of tiie *capacity*in which he was thus on board *;*so that lie might have been a landsman, or belong to another ship, and gone on board the Sally Ann, only to conve} the slave, remaining only to conceal him, and then left the vessel. Such'a case is covered by this indictment. So that the innocence of the prisoner, so far as respects the felony created by this statute, is consistent, and may well stand with the averments' of the in.dictment, inasmuch as, for aught appearing to the contrary, he may be a *mere stranger*to the *Salty Jinn.*As his connexion with the vessel must be proved by extrinsic evidence to bring his case before the Jury, within the meaning of the Statute, it is equally necessary that *362this indictment should aver tiie fact, to which such evi¿ence js applicable, and for want of such averment, the 4 k guilt of tiie prisoner is not affirmed by the verdict. For t[,is reas01)j the Court doth arrest the judgment.”

From this judgment the *Solicitor*appealed.

The cause was submitted by the *Attorney-General,*on tiie part of the State, without argument. No Counsel appeared for the prisoner.

Tayeok, Chief Justice.

1Tiie act of 1825, on which this indictment is framed, is amendatory of the act of 1792, on th>' same subject — the principal defect of which seems to have been, that it made it criminal, only in tlie master or commander of any ship or vessel trading within this State, to carry out of this State, or to- conceal on board for that purpose, any slave the property of a citizen of this State. Now tiie offence might often be perpetrated.by persons belonging to the vessel, without the knowiege or privity of the master, whose vessel might thus be made subservient to the felonious carrying away the property, without any criminality in him. The same danger did not exist with regard to persons not belonging to the vessel *•,*for it was not probabletliat they could carry away, or conceal, in the vessel of another, this kind of property. The mischief to be guarded against was, that of some person belonging to the vessel, besides the captain, committing the act. The law accordingly is extended to the mariners, or any other person or persons trading, or being within this State. There are frequently on board vessels from the Northern and Eastern States, persons who bring articles for sale, and dispose of them on board, who are not, strictly speaking, mariners, though they may occasionally assist in working the vessel. They are nevertheless attached to the vessel, and have as much facility as tiie master or mariners, *363to commit the offence. TTiaf the L< gislatuie meant only to include persons attached to the \essel, is apparent, l think, from the consideration of the objects of' the act, following in the same clause, where they drop the words *“*trading or being within the State,” and say “ person or persons on board any such ship or vessel;” so that connecting the words together, they would read, if any master of any ship or vessel, mariner,'or any other person, trading, or being within the State, on board of any such ship or vessel.” From which I think it follows, that the indictment ought to hate described the prisoner as one of the persons artaehed tb the vessel, against whom the penalty of the law is denounced, and that the reasoning of the Judge who tried the came, leads to the conclusion, that the judgment ought to be arrested.

Per Curiam. — Judgment affirmed.