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 of 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 authorize sentence of death upon the prisoner, because it charges only that the prisoner being in this (361) State, on board a certain vessel called the Sally Ann, 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 the statute, by alleging that the prisoner being on board, etc., contains no averment of the capacity in which he was thus on board; so that he might have been a landsman, or belong to another ship, and gone on board the Sally Ann only to convey 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 indictment, inasmuch as, for aught appearing to the contrary, he may be a mere stranger to the Sally Ann. As his connection 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 this indictment (362) should aver the fact to which such evidence is applicable, and for want of such averment the guilt of the prisoner is not affirmed by the verdict. For this reason the court doth arrest the judgment."

From this judgment the solicitor appealed.

TAYLOR, C. J.

The act of 1825, on which this indictment is framed, is amendatory of the act of 1792, on the same subject, the principal defect of which seems to have been that it made it criminal only in the 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, the offense might often be perpetrated by persons belonging to the vessel, without the knowledge 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 probable that 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 the master or mariners to commit the offense. That the Legislature meant only to include (363) persons attached to the vessel is apparent, I 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 have described the prisoner as one of the persons attached to the vessel, against whom the penalty of the law is denounced, and that the reasoning of the judge who tried the cause leads to the conclusion that the judgment ought to be arrested.

PER CURIAM. Judgment affirmed.

Cited: S. v. Stanton, 23 N.C. 430; S. v. Pickens, 79 N.C. 654.