State v. Flowers, 4 N.C. 97, 1 Car. L. Rep. 97 (1813)

Jan. 1813 · Supreme Court of North Carolina

4 N.C. 97, 1 Car. L. Rep. 97

State v. Flowers and Hampton.

AN indictment against the defendants for Trespass in forcibly taking from the possession of Wright Kirby a Negro slave named Nan. The Jury found them guilty, subject to the opinion of the Court on the following case:

On the sixteenth day of November, in the year 1810, a Negro woman, the property of Wright Kirby, had taken some cloaths to wash at a creek running through the land of the defendant, Green Flowers; that the place where she was washing for Mrs. Kirby, the wife of the said Wright Kirby, was near a quarter of a mile from the house of the said Wright Kirby, and within the lines and on the land of said defendant: That on the evening of the same day, Mrs. Kirby, wife of Wright Kirby, sent the negro girl, Nan, then in possession of the said Wright Kirby, to the negro woman who was washing, to help bring up cloaths, and while there the defendant, Green Flowers, assisted by the defendant, Edward Hampton, took her the said Nan into his possession (Mrs. Kirby then at her house) and carried her toward home, contrary to the will of her the said Nan; that while the said Nan was so in the possession of the said Green Flowers, and while he was on his own land and within his own inclosures, and after he had carried her nearly three hundred yards, Mrs. Kirby overtook them, and attempted to take the said girl, Nan, from the said defendant, who prevented her from so doing; that in attempting to take the girl, Nan, Mrs. Kirby was once or twice pushed down by defendant and bruised—but that she was not struck, or attempted to be struck, and that no force was used towards her, except in preventing her from taking the negro Nan, as above stated.

Locke J.

delivered the opinion of the Court:

The principle has long been settled and established, that an indictment for a trespass in taking property, can only be supported in those instances, where the act of taking has been accompanied with force, or where it is done manu forti. The evidence disclosed to support this indictment, states, that the negro charged to have been taken, was found on the land of the defendant, Flowers; that having a claim to said negro, he took her from the place where she was employed in the service of her master or mistress, being a distance of one-half mile from their house; that the mistress having understood it, pursued the defendant, in order to regain the property; but that at the time of taking, she must have been absent the distance above stated, and that no more force was exercised, than what was necessary to enable the defendants to retain in their possession the negro taken as aforesaid. The defendants, then, having, without any force or violence to the owners, gained possession of the negro, when on their own land, were at liberty to protect themselves, as well as the negro, from the attack or interference of any, who might claim title to said property. And great as the anxiety of this Court may be, to discourage and discountenance every act of this nature, yet we cannot conceive that the circumstances of this case, (though affording good ground of a civil action) can afford evidence of a forcible taking by the defendants. Let judgment, therefore, be entered for defendants.