State v. Flowers, 6 N.C. 225, 2 Mur. 225 (1813)

Jan. 1813 · Supreme Court of North Carolina

6 N.C. 225, 2 Mur. 225

JANUARY TERM, 1813.

The State v. Flowers & Hampton,

From Chatham,

A negro slave in the possession of and claimed by B. goes on the land of C. and is there taken possession of by C. in the absence of B. who shortly thereafter pursues C. and attempts to take the slave from him, C. is at liberty to repel this attempt, and is not indictable if he uses only such force as is necessary to retain the possession of the slave, nor is he indictable for the trespass in taking the slave, as the taking was on his own land, without any forcear vio* lence to B:

The Defendant was Indicted for a trespass. The jury found them guilty subject to the opinion of the Court on. the following case.

“ On the 16th day of November 1810, a negro woman the property of Wright Kirby, had taken some clothes to wash at a creek running through the land of the Defen - dant, Green Flowers. The place where she went to wash, was distant from the house of Kirby about a quarter of a mile, and within the lines and on the land of the Defendant, Flowers. In the evening, a negro girl named Nan, then in possession of Wright Kirby,, was sent !>j Mrs. Kirby, io assist in bringing up the clothes front the place where they were washed ; and whilst she was tjiorCj tjie fjefcndants, Flowers anil Hampton came dp, Flowers assisted by Hampton, took the negro girl' Nan into his possession! (Mrs. Kirby being then at her house) and carried her some distance towards his house Contrary to the will of the said Nan. While Nan was so in the possession of Flowers, and while lie was on hid own land and within his own enclosures, and after he had carried her nearly three hundred yards, Mrs. Kirby overtook them and attempted to take the said Nan from the Defendant, whii prevented her frond si) doing. Xh making these attempts, Mrs. Kirby was once or twice pushed down by Defendants, and bruised, but she was not ¡¿truck, nor was 'dny offer made to strike her, no forcé was used towards her except in preventing her from taking the negro girl Nan from the Defendants.

Upon these facts, the Jury prayed the advice of the Court, whether the Defendants were guilty of an indictable trespass j and the case being sent to this Court;

Locks, Judge,

delivered the opinion of tiic Court i

The principle has long been settled* that an indictment for a trespass in taking property; caii be supported only in those instances where the act of taking has b'eefi accompanied with force, or where-it is done manuforti. The evidence disclosed to support this indictment, stated that the negro charged to have been taken, was found ori 1 he land of the Defendant Flowers j that be took her from the place where she was employed in the service of her master or mistress, distant about a quarter of a mile from her master’s house j that the mistress having understood it, pursued-the Defendants in order to regain the property, but that at the time of taking, she was absent, and when she came tip, no more force was exercised, than what was necessary to enable the Defendants to re-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 person, 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, we cannot conceive that the’ circumstances of this case (though affording good ground for a civil action,) evidence such a forcible taking by the defendants as Constitutes an in. dictablc trespass. Judgment must therefore be entered lor tiie Defendants.