State v. Hardin, 19 N.C. 407, 2 Dev. & Bat. 407 (1837)

June 1837 · Supreme Court of North Carolina

19 N.C. 407, 2 Dev. & Bat. 407

The STATE v. JOHN C. HARDIN.

The evidence of an accomplice is undoubtedly competent, and may be acted on by the jury, as a warrant to convict, although entirely unsupported. It is, however, dangerous to act exclusively on such evidence; and therefore, the Court may properly caution the jury, and point out the grounds for requiring evidence confirmatory of some substantial parts of it. But the Court can do nothing more; and if the jury really yield faith to it, it is not only legal, but obligatory on their consciences to found their verdict upon it.

In an indictment for larceny, one cannot be convicted as a principal, unless he were actually or constructively present at the taking and carrying away of the goods. His previous assent to,' or procurement of the caption and asportation, will not make him a principal, nor will his subsequent reception of the thing stolen, or his aiding in concealing or disposing of it, have that effect.

In an indictment, under the act of 1779, (Rev. c. 142,) for seducing and conveying away a slave, it was held by the Court, Gaston, Judge, dissenting, that the seduction, and conveying away must concur to constitute the offence; and that one, who did not himself seduce or aid in seducing the slave, but only assisted in the conveying away, could riot be convicted as a principal felon.

The prisoner was one of those indicted in Rutherford county, jointly with John Haney, whose case came up to this Court, and has been decided during the present term. The trial was, as to the prisoner Hardin, removed to the county of Burke, where he was convicted upon both the counts in the indictment; the one charging that the prisoner and the others did steal and carry away a negro-slave by the name of Eli, then and there being the property of Nancy Davis; and the other, that “the said John C. Hardin, John Haney, &e., one other negro-man slave named Eli, then and there being the property of Nancy Davis, and then and there in the possession of the said Nancy, feloniously by seduction and violence, against the will and consent of her, the said Nancy Davis, owner as aforesaid, did take and convey away from the possession of her, the said owner, with an intention the said slave to sell, dispose of and convert to their own use, contrary to the form of the statute in such case made and provided, &c.”

Upon the trial, the negro in question, was proved to be the property of Nancy Davis, as charged in the indictment; and it was also proved, that he was stolen, or se(^uce(^ or went from her plantation in Rutherford, on the fourth Saturday of July, 1836.

One Robins was then produced as a witness for the state. - He testified that on Sunday, the nest day after the disappearance of the slave, he saw, at a meeting-house in the neighbourhood, Haney, one of the accused, with whom, as well as with the prisoner, he, the witness, had been acquainted about a year. Haney informed him, that a negro had come to him the preceding night a little before day; and then requested witness to go that evening to the prisoner, Hardin, and tell Hardin to meet him at a place called Webb’s old field that night, about an hour after dark; and also that he, the witness, should accompany Hardin. In the course of the conversation, Haney remarked, “ Hardin has missed the one he has been trying to secure; but good luck will come after bad. Tell him, this boy has come to me.” The witness made the communication to the prisoner, Hardin; and they went together to the place and at the time appointed, and there found Haney. Upon a whistle by Haney, a large negro-man came up to them; and, in reply to Hardin’s question, where did he come from? Haney said, “ he came from the widow Davis.” Haney then remarked, “You, Robins, must take him off1. It will be a safe trip, as the widow has not energy to press like some people. In the mean time Hardin will keep him till you get ready to start.” That was then agreed on by the three; and Haney left them — remarking to Hardin, “ You know our agreement to which Hardin replied, “ yes,” and added, “ it will do.” The prisoner, the witness and the negro then went together within half a mile of Hardin’s house; when Hardin suggested that there might be some person at his house, and proposed that the negro and the witness should stay in the woods until he should go to see, and return to them. Hardin did not return that night, but came the next morning with food for them. It was then agreed between Hardin, Robins and the negro, that Robins should take the negro to South Carolina and there sell him; that he should go that day, and make his preparations; and that the negro should meet him the next day at a point designated on the road. The witness accordingly proceeded, and on the next day the negro met him according to appointment; and Robins and another associate, named Williams, carried him to South Carolina and sold him for nine hundred dollars; of which part was paid to Williams; and upon the return of Robins to this state, the sum of one hundred apd forty-five dollars was paid to Haney, and two hundred and fifty-five dollars to the prisoner, Hardin. Upon his cross-examination, the witness stated that his habits had been moral and upright until he had become acquainted with the three persons charged in this indictment, who influenced him to join an association which they called a club, and represented to have members spread over the country; and that this was his first adventure in the way of selling slaves. But when further pressed, he admitted that he had before sold a free negro, named Wingfield for one thousand dollars, of which he gave two hundred dollars to Wingfield himself for agreeing to be sold; two hundred dollars to a man in South Carolina, for helping him to sell the free negro; one hundred dollars to Haney, and ninety dollars to the prisoner, Hardin; and that he spent the residue himself. He also stated, that when he paid to Haney his share of the price got for Mrs. Davis’s negro, Haney said to him and Hardin, “ You know our plan is- to steal the negro again and sell him over, so you must make up something to pay for doing thatupon which each of them gave Haney twenty-five dollars more. In the division of the money, Hardin insisted upon having the largest share, in consequence of “ his having tried so long to get a negro, in which he met with bad luck.’r

The witness, in the course of his examination, stated a great number of minute .incidents as occurring on his journey; as to which his testimony was sustained, and in some points contradicted, by that of others. But he was not corroborated directly in any part of his testimony relative to the transactions with Hardin in particular.

The counsel for the prisoner, moved the Court to instruct the jury, that they ought entirely to disregard the testimony given by Robins, the accomplice, because it was not supported, in any material part, by which a personal agency of Hardin was shown. The counsel further moved the Court to instruct the jury, that if they should believe the said evidence of Robins, yet they ought not to find the prisoner guilty; because upon that evidence the prisoner was not a principal in the felony committed, but only an accessory.

His Honor Judge Pearson refused to give either instruction as prayed. Upon the first point he charged the jury, “ that if the narrative of the accomplice, Robins, from the manner in which it was told, and the matter stated, and from the confirmation it received in many material parts by other testimony, carried to their minds a full and entire conviction of its truth, they might convict the prisoner, although the narrative was not confirmed in any material part, in which Hardin had a personal agency ; that it was more satisfactory, when the evidence of an accomplice was supported in the latter particular; but it was not indispensable, provided the jury, from the other particulars, were satisfied the witness was entitled in fact to full credit.”

Upon the other point, his Honor charged the jury, “ that if they were satisfied from the evidence, that the prisoner, the witness, and Haney, had entered into an agreement to steal or seduce away negroes from their owners, and have them run off to South Carolina or elsewhere, and sold for the benefit of those concerned; and that in pursuance of such agreement, Haney had procured the negro Eli, mentioned in the indictment, to leave his owner, Nancy Davis, and come to him, and afterwards to meet the prisoner Hardin, the witness Robins, and Haney, in Webb’s old field ; and that the slave was there delivered by Haney to Hardin, and received by Hardin with a full knowledge on the part of Hardin; that he was the property of Nancy Davis, and had been stolen or seduced from her; and that Hardin kept the negro for a day, and then procured him to meet Robins and Williams on the road; and that they ran him off to South Carolina, and there sold him in pursuance of the said agreement, and divided the money, as deposed to by the witness, Robins; then the jury were authorized to find the prisoner guilty under the indictment.”

The jury found the prisoner guilty; and he moved for a new trial for error alleged in the foregoing instructions; which was refused, and sentence of death passed; from which the prisoner appealed.

The evidence given on the trial, was not stated in the exceptions of the prisoner, or in the case made out by the judge. It was stated in the transcript, that it was deemed unnecessary to set forth the evidence in detail, as it was much the same as in the case of the State v. Haney, which had gone to the Supreme Court from Rutherford, upon the same indictment. The attorney-general, however, did not think it proper to insist upon the omission, supposing it to be mere oversight; and consented to amend the record in this case, by inserting in it the evidence which appeared, by the record in the other case, to have been given on that trial.

The Attorney-General, for the state.

Ruffin, Chief Justice,

after having stated the case as above, proceeded as follows.— The first ground of exception in this case, has been so recently and fully considered in the State v. Ilaney, that nothing remains to be added on it. ' The evidence of an accomplice is undoubtedly competent, and may be acted on by the jury, as a warrant to convict, although entirely unsupported. It is, however, dangerous-to act exclusively on such evidence, and therefore the Court may properly caution the jury, and point out the .grounds for requiring evidence confirmatory of some substantial part of it. But the Court can do nothing more; and if the jury really yield faith to it, it is not only legal, but obligatory on their consciences, to found their verdict upon it. And in Rex v. Dawlar and others, the jury were advised, that they ought to do so against all the prisoners, when, upon an indictment against several, the evidence of the accomplice was confirmed as to some of them, but not as to all. 3 Stark. 34, and note.

It is not competent to reverse a judgment for an abstract proposition delivered by the 'judge, however •erroneous; and unless the evidence be so stated as ■to raise the question, it is merely abstract. Nor can the . .Supreme •Court go out of one record to another to find the evidence given, or the points made or decided in the former.

It ought to be premised, before considering the other exception, that the Court would have been under much difficulty in getting at it, had not the amendment been made in the record. It is not competent to reverse a judgment, for an abstract opinion delivered by the judge, however erroneous ; and unless the evidence be so stated as to raise the question decided, it is merely abstract. Nor can the Court here go out of one record to another to find the evidence given, or the points made or decided in the former. The record in each case must be complete in itself, without invoking that in any other case. The humanity of the Attorney-General has, indeed, properly removed the objection in this case; and it is hoped that there will be no occasion for him to be thus indulgent to a prisoner again.

Upon this objection of the prisoner, as applied to the evidence, and the instruction given on it, the Court is of opinion, that the judgment is erroneous, and that there must be a venire de novo.

The prisoner is found guilty generally, upon both counts in the indictment: yet it will serve the purpose of distinctness, to consider each separately.

The first is for a larceny -of the slave; as to which, it has been held to be a felony at the common law, and that the statute only ousts it of clergy. The evidence, we are satisfied, establishes, a conspiracy between the accused persons and the witness, to steal or seduce negroes ; and that those persons, or any of them, should carry them to a distance from their owners, apd sell them for the common benefit. But the concerting of such a plan does not make all the,parties to it guilty as principals, upon a subsequent stealing of a slave by any one of them. There must also be a concurrence and participation in the acts of taking and carrying away. This is ordinarily evinced by those acts being done by the prisoner himself, or by some other, when he is present, or so near that he can assist in the fact, or in the escape ,of him who actually perpetrates it. Presence, therefore, in its legal sense, generally distinguishes the guilt of a principal from that of an accessory-If the taking and carrying away be completed in the absence of one of the conspirators, his previous assent to or procurement of those acts, do not make them his acts; nor does his subsequent adoption of them, by receiving the thing stolen, or aiding in concealing or disposing of it, according to the original design, have that effect. The reason is, that the taking and carrying away constitutes the offence, the corpus delicti; and in that he had neither actually nor potentially, a personal agency. The least removal is an asportation, and completes the crime of him who effects it. 4 Bla. Com. 231. Lapier’s Case, 1 Leach, 360. It is true, the removal must be such, as to amount to exclusive possession in the thief; and therefore, if goods-are fastened to a counter by a string, or a purse to the person, or it becomes entangled with keys in the owner’s pocket, so that the possession was not actually at any time changed, the taking those things with the view of stealing them, is not a larceny, for the want of a severance and asportation. 1 Hale, P. C. 508. Cherry’s Case, 2 East’s P. C. 556. But if the possession be once taken by the -thief, although but for ah instant, the crim.e is committed; because thereby the possession and dominion of the owner •is, at least for that instant, destroyed. Thus, if one intend to steal plate, and he take it out of a chest, and lay it on the floor, but is detected before he gets away, it is a sufficient asportation. Kel. 3]. According to these principles, the larceny in this case, was committed by Haney alone. When the witness and the prisoner, Hardin, first saw the negro, he was in the possession of Haney. According to the testimony of the owner, the negro disappeared on •Saturday night; and according to the information given by Haney to Robins, he was in the possession, and under the exclusive control of Haney, from that time, until Sunday night. There is no evidence to connect the pri.soner with the possession at any time before the meeting in Webb’s old field. It is true, it does not appear how -near that was to Mrs. Davis’s. But it cannot be taken upon this record, that it was so near, as to make that the original, or an original taking from the owner; for the instruction supposes that Haney had procured the negro to come to him, and that he afterwards delivered him to Hardin, with a knowledge on the part of Hardin, that he had been stolen or seduced. The instruction must therefore have been founded on the preconcert; and on the idea that the part which Hardin played was in fulfilment of the previous plan; so as to make the whole one continuing transaction. In support of that view, it has been contended, on behalf of the state, that the original plan embraced every thing that was done, including the asportation by Hardin, as a single transaction, andjhere-fore, that it is to be so regarded now. The cases relied on to support these positions, are those of Dyer and Disting, and Atwell and O’Donnell, 2 East, P. C. 557, and 767-8. In those cases, goods were removed from one part of a barge, and one part of a warehouse to another part, with the view of concealing them, and making it more convenient to remove them entirely, when it could be done with more apparent safety; and persons, who did not concur in those acts, but assisted in the final removal from the boat and warehouse, were held to be guilty, as accomplices in the felony, notwithstanding the offence was complete upon the first removal, as to those who made it. No other cases have made the distinction between a receiver and an accomplice, so nice. But the principle established by them is probably sound. Yet it do$s not reach the case before us. Those cases proceed distinctly on the ground, that while the goods remained in the barge or warehouse, they were properly in the place where the owner had deposited them, and were therefore virtually in his custody; and he could not be said by those, who assisted in the act of finally carrying them away, to have lost his dominion over them, until they were taken from that place of deposit. But that does not apply in a case where a possession is gained by the first removal, clearly in exclusion of that of the owner. In King’s Case, Easter Term, 1817, Russ. & Ry. Cr. Cas. 332, some persons stole a parcel of butter out of a warehouse, and carried it along the street, thirty yards only, and then brought the prisoner to the place, and informed him of what they had done, and he assisted in carrying the property to a cart, which was kept in waiting at some distance, to convey it away. At first, it was thought the prisoner was guilty, upon the ground, that he was present, aiding and abetting in the continuation of the larceny, by carrying the goods to the cart; and he was found guilty. But the case being reserved for the opinion of the twelve judges, they held the conviction wrong, because the taking was complete, before the prisoner had any part in the transaction. In that case, it does not appear, that there was any previous conspiracy; though from the immediate concurrence of the prisoner, when carried to the spot, one might be readily inferred, if not to steal that particular property, yet to unite in thefts generally, as in the case before us. But in Kelly’s Case, in 1820, Russ. & Ry. Cro. Cas. 421, that feature was supplied. The prisoner was tried and convicted before Mr. Justice Bayley, for stealing two horses. It appeared in evidence, that one Whinroe and the prisoner went to steal the horses. But the prisoner stopped when they got within half a mile of the place where the horses were, and Whinroe went on, stole the horses, and brought them to the place where the prisoner was waiting for him, and then they both rode 'them away together. The learned judge thought Kelly guilty, as well as Whinroe; but upon adverting to King’s Case, he thought his first opinion wrong, and reserved the case. All the judges held the conviction wrong; being of opinion, that the prisoner was an accessary only, and not a principal, because be was not present at the original taking. If going towards the place where a larceny is to be committed, in order, according to a previous agreement, to assist in conveying away the property, and actually assisting accordingly, will not make the person a principal, if he was at such a distance at the time of the taking, as not to be able to assist in it; it follows a fortiori, that merely receiving the stolen goods, twelve hours after they were taken, without any previous knowledge that they had been taken, or even that they in particular were to be taken, can only render the person an accessory to the larceny. It is erroneous to suppose, because in the conspiracy the ultimate disposition of the property, and its being carried towards that end first by the hand of one of the conspirators, and then of another, was contemplated, that the whole is one continuing transaction. Those were to be events consequent upon- the larceny. They do not enter into the larceny, as- parts- of j , . , , , the corpus delicti; but that crime was complete by the-original caption and asportation from the possession of the owner. The common unlawful design to steal, does not make each of the parties a principal, unless, as Judge FosteR says, p. 350, at the commission of the crime “ each man operates in his station at one and the same instant,. towards the same common designas where- one is to-commit the fact, and others to watch at proper distances,, to prevent surprise, or to favour escape, or the like.

The foregoing observations enable us in a good degree,, we think, to arrive at a proper conclusion, upon the second count of the indictment, which is for seducing and conveying away the slave. This is a new offence, and depends entirely upon the statute. The Court is not, indeed, free-fropa doubt, whether the known circumstances under which the crime of seducing slaves is ordinarily perpetrated, requiring the cooperation of many in- taking, concealing, or harbouring and transporting them, do not require upon the words “ take or convey,” in the statute,, an,interpretation, that either constitutes the offence, within the meaning of the legislature. If that were correct, then the conveying by one, although another had stolen the-slave, would itself be a principal felony. This doubt has not been slightly strengthened by the application in the same section of the act, of the same term “ convey,” to-' free negroes ; it being made a capital felony, to “ take or convey a free negro out of this state into another, with-intention, &c.” But upon deliberate consideration, we have felt ourselves bound, in a case so highly penal-, to-construe the statute, in reference to slaves,'to mean a taking and carrying from the possession of the■ owner; or, in-other words, that convey is used merely as expressive of' asportation in other cases. The indictment before us is-framed on that notion; charging that the negro was in the possession of the owner; and that the prisoner “ did take and convey him away from the possession of her, the said, 8fc” That we deem the proper sense of the act-, The preamble is indicative of it. It recites the pernicious practices of stealing, or otherwise “ carrying away” slaves, as also of stealing “ and carrying off ” free negroes ; which shows, that convey is substituted, in the body of the act, for cam) away, and is used in the same sense. Besides,, /“conveying” implies two termini; the one from which the person is conveyed, and the other, to which he is conveyed. With respect to free negroes, the former is necessarily this state, and any part of it; because the subject is alike free everywhere, and the offence is conveying him out of this state; and of course the latter terminus is any other state. But with respect to slaves, the asportation need not be out of this state ; but may be altogether in it. Unless, therefore, the point at which it is to begin be when-the slave was in the owner’s possession, the act gives no other terminus. The distinction is the clearer, as the preamble applies the word away to slaves, and off, to> free negroes. The point has never been brought directly to the notice of the Court heretofore; but cases have-arisen, in which it would have been decisive, and saved much discussion, if it had been deemed tenable. For instance, there could have been no difficulty in Davis’s Case, 2 Car. Law Repos. 291, if every conveying a slave with intent to sell, be within the act, and it would have been immaterial whether a runaway slave was the subject of larceny, or not. In Jernagan’s Case, N. C. Term Rep. 44, Chief Justice Tayloh was of opinion, that the act did not even embrace a person who was present at the original taking, aiding and abetting in it, because his was not the hand which'committed the fact. The other members of the Court did not indeed concur in that part of the opinion ;• but there was no impression entertained, that a subsequent distinct asportation, after the-owner’s possession-was lost, made the person a principal felon, upon the force of those words, “ or convey.” We think, if such had been the-purpose of the legislature, it would have been explicitly expressed, in terms more appropriate,, and less equivocal. If others besides those who seduce slaves, and convey them from the possession of the owners, or participated in those acts, had béen meant, the act would have expressly mentioned procurers and receivers, or used some terms which explicitly embrace them; as has been done in analogous cases. The statute against the forcible abduction of women, 3 Hen. 7, c. 2, furnishes an example. After reciting the evil of women being “ taken by misdoers, contrary to their will, and married, or defiled,” it enacts, that “ such taking, •procuring, or abetting the same, and also receiving ivittingly such women, be felony; and that such misdoers, takers, and procurators to the same, and receitors, be adjudged principal felons.” So the statute of 4 & 5 Phil, and Mary, against alluring away female children from their parents, uses this very word “ convey,” but in a way which leaves no doubt of its proper signification. 'It recites the dangerous practices by lewd persons, and others, that for reward buy and sell female children, secretly allured to contract matrimony with unthrifty persons, of taking by sleight or force and conveying away female children from their parents ; and enacts, “ that it shall not be lawful tq any person or persons, - to take or convey away, or cause to be taken or conveyed away, any maid, &c., out or from the possession, custody, or government of the father of,” &c. And the language in a very modern British statute upon this subject, that of 9 G. 4, c. 31, is equally explicit. The 19th section enacts, “ that if any person shall, from motives of lucre, take away or detain any woman against her will, with intent to marry or defile her; every such offender, and every person coun-selling, aiding, or abetting such offender, shall be guilty of felony.” The 21st section enacts, “ that if any. person shall maliciously, either by force or fraud, lead or take away, or decoy or entice away, or detain any child under the age of ten years, with intent, &c., or if any person, shall, with intent, &c., receive or harbour any child, knowing the same to have been, by force or fraud, led, taken, decoyed, enticed away or detained, as before-mentioned; every such offender, and every person .aiding, counselling, or abetting such offender, shall be guilty of felony.” Those acts plainly embrace procurers and receivers, or those who do acts, subsequent to the commission of the offence by the original perpetrator, in aid of him, or in further prosecution of his or a common design. If we could find any such language in our statute, now under consideration, we should not hesitate to enforce it upon the prisoner, for we have no doubt that his acts are within the mischief which the legislature meant to remedy; but wre cánnot find in the act itself a warrant for holding the prisoner, or Robins, or Williams, to be more than accesssories to the felony of seduction committed by Haney. The judgment was therefore erroneous, and must be reversed; and a venire de novo awarded to the prisoner, Hardin.

Daniel, Judge, concurred with the Chief Justice.

Gaston, Judge,

dissented, and delivered the following opinion.

After a very anxious consideration of this case, and frequent and full conferences with the other members of this Court, I cannot bring my mind to concur in the judgment which has been rendered. In a matter of so much concern to the community, and of such immense consequence to the prisoner, I feel it a duty to state distinctly the point on which I differ from my brethren, and to assign succinctly the reasons on which that dissent is founded.

If the indictment had contained no other charge’against the prisoner than that for larceny, I should, with them, have thought the instruction of the judge erroneous.Whether the evidence established an actual taking of the negro by the prisoner’s associate, before the meeting at Webb’s old field, and showed that his mistress had then lost, and Haney had then obtained the possession, or proved only that the negro had lent a willing ear to the seductions of the tempter, and was ready to go off-, whenever the conspirators should be ready to start on their expedition, was a question of fact for the consideration of the jury ; but the instruction authorized a conviction of the prisoner, whatever might be the conclusion of the jury in regard to that fact. Now, when a crime has been actually committed, no subsequent aid rendered to the;felon, though in pursuance of a previous agreement, will make a person a principal in that felony, who was not either actually or constructively present at its commission. The crime of larceny, consists in the felonious taking and asportation of the personal goods of another from his possession. The *. ° ... carrying away alone, however criminal the intent, will not constitute larceny, unless it accompany the taking from the possession. Larceny includes' the idea of a trespass; and therefore, if the party be guilty of no trespass in taking the goods, he can commit no larceny in carrying them away. One not present at the trespass, is therefore, not a principal in the larceny. But it seems to me that the instruction was correct upon the second count ■of the indictment, and as the, prisoner has been found guilty on both counts, and if the instruction iyere correct, has been properly found guilty on the second, the state was entitled to demand thejudgment which was rendered below.

The second count of this indictment charges, that John Haney and the prisoner, a certain negro slave named Eli, the property of Nancy Davis, and in the possession of the said Nancy, did by seduction and violence take and convey away from the possession of the said Nancy, with an intent to sell the said slave, contrary to the provisions of the act of the'General Assembly, in such case made and provided. The instruction supposed to be, erroneous, was, that if in pursuance of a concerted scheme between Haney and the prisoner, to seduce negro ■slaves from their owners, and convey them to South Carolina for sale, Haney had procured the slave to come to him, and the prisoner received the slave from Haney, conveyed him to South Carolina, and then sold him, the prisoner was guilty of the crime charged. The act is entitled an act to prevent the stealing of slaves, or by violence, seduction, or any other means, taking or conveying away any slave or slaves, the property of another, and fqr other purposes.” The preamble recites “ that it is necessary that the pernicious practice of stealing, or otherwise carrying away slaves, the property of others, as also of stealing and carrying off free negroes and mulattoes, with an intent to sell, should be discouraged by a law with additional penalties,” The statute then enacts, that any person who shall steal, or who shall by violence, seduction, or< any other means, take or convey Ñiwayany slave, the property of another, with intention ■such slave to sell, dispose of to another, or appropriate to his own use; or who shall by violence or any other means, take or convey any free negro or person of mixed blood out of this state, to another, with an intention to sell or dispose of such free negro or person of mixed blood, shall be adjudged guilty of felony, and suffer death without benefit of clergy.

It is indisputable, I think, that the legislature intended that the severe, but necessary penalty denounced in the statute, should apply to others than 'those who should themselves take and carry away the slaves. They meant by this penalty to prevent the practice not only of stealing, but of otherwise carrying away slaves. It has been settled by repeated adjudications, that in pursuance of this intention, they excluded the larceny of slaves, an existing common law felony, from the privilege of clergy; and then proceeded to create a new and capital felony, the taking or conveying aw'ay of a slave by violence, seduction, or any other means for the purpose of dishonest gain. Indeed it is not doubted by my brethren, that the acts of the prisoner are within the mischief which the statute was intended to remedy; but they have felt themselves compelled to save him from the penalty denounced against the perpetrators of such mischief, because the words of the ■statute do not distinctly embrace these acts.

It is manifest that this construction, to all practical purposes, establishes that no new felony was created by the statute. If none can be punished under that act, but he who fakes and carries away the slave of another from his possession, causa lucri, as every such taking and carrying away is larceny, the act fails in discouraging any other means of conveying away slaves, than those which before constituted larceny at the' common law.

A penal statute cannot rightfully be extended by construction, to embrace cases within its spirit if they do not come within its words; but where the words of such a statute, understood in their usual signification, do embrace a case, and there is no sufficient reason to doubt that the case is also within the meaning of the legislature, the will of the law-makers must be executed, although it might have been expressed with greater technical precision.

The act untler examination, declares guilty of felony every person who shall take or convey. Not only then in a popular sense, but according to grammatical strictness, he who conveys is as guilty as he who takes; that is to say, Hardin is as guilty as Haney; “ or” may be construed to mean “ and,” when the context shows that it has been incorrectly used; but it must be supposed to have been correctly used, until the contrary sufficiently appears. In every other instance where “ or” is found in this statute, it has received from the Courts its ordinary interpretation. Thus it has been held, that the words “ violence, seduction, or any other means,” are to be taken disjunctively; so the words with an intention “ to sell, dispose of, or appropriate to his own use.” It is certain that an indictment is good which charges the use of one of these means, with an intention to accomplish one of these purposes, and the only difficulty on the subject has been, whether an indictment is not liable to the objection of duplicity, which charges the use of more means than one, and an intention to accomplish more than one of the prohibited purposes.

What is there in the statute which requires the substitution of “ and” for “or” in this instance? It is not required to effectuate the intention of the law-makers; and I know of no reason besides, which can justify it, unless such substitution be necessary to save the-enactment from absurdity.

I do not see any such absurdity. The word convey is very nearly synonymous with carry, and may be regarded as differing from it principally as indicating more distinctly a motion from one place to another place, or transmission from one person to another person. The legislature has not fixed either terminus of the criminal conveyance, either that at which it begins, or that at which it is' to end. They have made every removal of a man’s slave, with the wicked purpose of depriving the owner of his property, a felony. In their view of the enormity of the criminal practises prevailing, and of the necessity of putting them down by rigorous punishments, it was right so to enact. The practice was equally mischievous, whether the conveyance was made by a trespasser or by a bailee; by the original seducer, or by his. accomplice; whether to another state, or to another part of the same state ; whether to a greater or a smaller 'distance; where, they have affixed no termini, I think the Court ought not to make any.

In the preamble of the act, the term “ carrying away,” is used in regard to slaves, and the term “carrying off,” with respect to free persons, while the term “ convey” is used in the enactments. But little light, it seems to me, is thereby thrown on the meaning of the term “convey.” It is natural to expect more precision of language in the enacting clauses of a statute, than in its preamble. The term convey is, according to my view of it, the most appropriate to express the meaning of those phrases as; used in the preamble. The practice there first spoken of, is not simply that of carrying away slaves, but of stealing or “ otherwise carrying away.” I am at a loss to discover any other mode than stealing referred to, if the conveying by one who has not taken, be not meant. The other practice mentioned in the preamble, is- that of stealing and carrying off free persons. By stealing, as applied to free persons, must be intended taking, for as they are not the goods of another, they cannot be stolen.. Carrying off, was- thought more applicable than carrying away, when the removal contemplated was out of the state. In the body of the act accordingly, when its enactments with respect to free persons are declared, we find the words “ take or convey out of this state to another.” The term “ convey,” as here used, is admitted to apply to those who have not taken, and the disjunctive, or, between take and convey, is to be here understood in its proper sense. It is-not obvious, I think, why the very same phrase, “ take or convey,” in the same sentence, should be differently interpreted.

If the construction of the act which I adopt be correct, it was sufficient for the conviction of the prisoner, that he had acted in the carrying away, though not ih the taking 0f the slave. The crime planned by the conspirators— the crime committed — Hhe crime denounced by the law— was remova^ the slave from the owner for sale.. Every one who actually performed a part in the commission of that crime, whether by getting possession of the slave, or by conveying him after the possession was taken,, is, as I believe, guilty as a principal felon, within the' words and meaning of the act; not on the ground of a constructive presence when the acts of his associates, were performed, but because of the acts performed by himself.

Pee CüRiam. Judgriient reversed.