Opinion
(December Term, 1844.)
1. An indictment charging that a certain negro slave did "hire her own time, contrary to the form of the statute," etc., is defective and must be quashed because it omits to charge one essential part of the offense, that is, that she was permitted by her master to go at large.
2. Under the first clause of section 31, chapter 111 of Revised Statutes, prohibiting masters from hiring to slaves their own time, the master is not indictable; he is only subject to the penalty of $40. Nor is the master indictable under the second clause of that section; the process is against the slave, not against the master.
3. The act of 1794 was not repealed by that of 1831 on the subject of slaves going at large. They were intended to punish different offenses, and they are both now retained in the Rev. Stat., ch. 111, secs. 31 and 32.
4. To constitute the offense under the latter section, it is not necessary that the slave should have hired his time. It is sufficient if the master permits him to go at large as a freeman.
5. Presentment and indictment are considered the same in construing section 31.
APPEAL from PASQUOTANK Spring Term, 1843; Pearson, J.
Attorney-General for the State.
Kinney for defendant.
The defendant was indicted in the following words, to wit:
(222) "The jurors for the State upon their oaths present, that Clarissa, a slave, late the property of one Arthur Q. Butt, with force and arms in the county of Pasquotank on 1 July, 1842, and on divers other days and times, as well before as afterwards, up to the day of taking this inquisition, unlawfully did hire her own time, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State."
The defendant's counsel moved to quash the indictment, (1) Because the act of 1831, reenacted in the Revised Statutes, relative to slaves being permitted to have the use of their time, and making the master indictable and subject to a fine, had the effect to supersede the act of 1794; otherwise, the master would be punished three times for the same act: first, by a penalty of $40; secondly, by the loss of the slave's time for one year, under the act of 1794, and, thirdly, by indictment and fine of $100, under the act of 1831. (2) Because the act of 1794 required the slave to be tried on presentment and hired out by the county court, and did not give the Superior Court jurisdiction.
The court directed the indictment to be quashed, and from this judgment the solicitor for the State appealed to the Supreme Court.
This is an indictment or presentment of the grand jury of Pasquotank County against the defendant under section 31, chapter 111, Rev. Statutes.
The indictment sets forth "that Clarissa, a slave, late the property of one Arthur Butt, with force and arms, etc., unlawfully did hire her own time, contrary to the form of the statute in such case made and provided." The first clause of the section under which these proceedings are instituted is as follows: "It shall not be lawful, under any pretense whatever, for any person or persons to allow his or her or their slave, or any slave under his, her, or their command or direction, to hire his, her, or their time, under the penalty of forfeiting the sum of $40 for each and every offense, to be recovered before (223) any justice of the peace, for the sole benefit of the party prosecuting." The succeeding clause declares: "It shall be the duty of the grand jury, both in the county and Superior Court, to make presentment of any slave who shall be permitted by his or her master or mistress to go at large having hired his or her time." The clause then goes on to provide for a trial by jury, the owner having received ten days notice before the sitting of the court; and if the jury shall find that the presentment is true, the slave shall be hired out by the sheriff at public auction for the space of one year, he taking bond for the hire, payable to the State of North Carolina for the use of the poor of the county. It will be perceived that by the first clause a pecuniary fine is inflicted on the owner of the slave for hiring to him his time and that the Legislature has said by whom and to whose use the penalty shall be recovered, to wit, by any person prosecuting or suing for the same, and to his own use before any magistrate. For the offense contained in this clause no indictment can be sustained against the master; his personal liability is for the penalty of $40. S. v. Clemons, 14 N.C. 472. Nor is the slave subject to any proceedings. The succeeding clause points out when the criminal process shall issue, and against whom — not against the master, but the slave. It is under this part of the action that this indictment or presentment has been framed; and we are of opinion it cannot be sustained, because it does not set forth the offense the statute intended to punish. The crime consists not alone in the slave being permitted to hire his or her time, but also being suffered by the master to go at large. Both circumstances must exist, and both must be charged. Every indictment must contain on its face a complete description of such facts and circumstances as constitute the crime. This is necessary, as well for the individual charged, to enable him to prepare his testimony and to protect him against any future liability to a prosecution for the same offense, as for the court, to enable them, in looking into the record to decided whether the facts charged are sufficient to support a conviction of the (224) particular crime stated and, also, in some cases, to guide them in inflicting the appropriate punishment. Starkie Crim. Pl., 73, 266. The indictment in this case simply charges a hiring of her time by the slave, Clarissa. For aught that appears on it, she never was permitted to go at large which is, indeed, the gravamen of the offense — in other words the overt act — and essentially necessary to its completion. For this reason the indictment is defective. A motion was made in the Superior Court to quash the indictment for two reasons: the first, that the act of 1794 was repealed or superseded by that of 1831, and, second, that by the act of '94 the proceeding ought to have been by presentment and not by indictment, and that the Superior Court had not jurisdiction. We should not notice these objections, as we sustain the judgment on other grounds, but from the apprehension that from our silence it might be supposed we concur in them. We do not accede to the correctness of either proposition. Both the act of 1794 and of 1831 are embodied in ch. 111, Rev. Statutes, the former constituting section 31, and the latter section 32; and each act or section was intended to punish different offenses. The act of '94 intended to punish the master with the loss of the time of his slave for permitting him to go at large, and having hired his time; section 32 was directed to another offense, considered by the Legislature more pernicious to the community than the former, the permitting slaves to act as freemen; and if any owner "consent or connive at the commission of such offense he shall be subject to indictment, and on conviction be fined by the court not exceeding $100." To constitute this offense it is not necessary that the slave should hire his time; on the contrary, it supposes that the master has abandoned all control of the slave, and in this way endeavored to emancipate him or her without observing the requisitions of the law. Under the act of '94, or sec. 31, ch. 111, Rev. Statutes, the master is not liable to any indictment. Under that of 1831 he is.
The act of '94, it is true, uses the word presentment; we (225) consider it here the same as indictment; and section 31 expressly extends the jurisdiction of the Superior Court to the offense.
PER CURIAM. Affirmed.
Cited: S. v. Nat, 35 N.C. 156.