Opinion
December Term, 1852.
The 12th section, 34th chapter Revised Statutes, in regard to the offense of taking and conveying a free Negro out of the State, with intent to sell him as a slave, includes only cases in which the taking is by violence; and does not extend to cases where the Negro is induced to go by persuasion, seduction, or deception.
THE defendant was indicted, under the act of Assembly (chapter 34, section 12, Revised Statutes), for taking and conveying a free Negro named Jim Corn, out of the State, with intent to sell him as a slave. The indictment contained several counts, in which the taking and conveying away were differently laid — to be by "violence," by "seduction," by "persuasion," by "deception." On the trial before his Honor, Judge Ellis, at SURRY, on the last fall circuit, the evidence for the State was substantially as follows: John Brown testified that in the spring of 1848, the prisoner proposed to join him a trip of Stokes Court, for the purpose of trading — the prisoner to furnish the wagon, and the witness the horses. They started off to Germanton, he having fish in the wagon, and the prisoner guns. While camped at Robertson's branch, one Robertson came and asked prisoner if the free Negro, Jim Corn, was going with him on a trip over the mountains. Prisoner said, not to his knowledge. Robertson then remarked that he had seen Jim Corn a few hours before, and he said he was going with the prisoner on a trip over the mountains. The prisoner then said there had been some talk about it, but if Corn wanted to go, he should not sleep in the wagon. They, witness and prisoner, went on to Germanton next day. Not being successful in trading, the prisoner proposed to go to Mount Airy, and over the mountains. To this witness assented. Prisoner proposed that they should take Jim Corn with them to wait on them, but witness objected, there being but a one-horse wagon and two of them, and that they would have no use for him. The prisoner finally agreed to pay the expenses of the boy on the road, and witness, on these terms, agreed that he might go. They all went on together with the wagon from Stokes County, through Surry, and out of that county into Virginia. They traveled along the usual public road, and in an open manner. There was no attempt to conceal the boy, Corn. On the road, after they had (10) passed into Virginia about fifty miles, Corn gave the witness some insolence, when the latter gave him a blow which knocked him down. The prisoner told him not to abuse the boy, that he intended to put him in his pocket before he got back. This was said in a jocular way, and the witness so regarded it. At another time, after this, when the boy fell behind on the road, prisoner said he was afraid the boy would go back — that he intended to put him in his pocket before he got back. The witness considered this a jocular remark. They went together to Burk's Garden, in Virginia, to the house of one Lowder, with whom the prisoner had some talk, and with whom he rode off, and returned with another man. Suspecting that the prisoner intended to sell the boy, Jim Corn, the witness took his horse from the wagon and returned to North Carolina. He left the prisoner, corn, and a man named Orfall at Lowder's, in Virginia; had never seen Corn since. He told Levi Stafford of the occurrence soon after he returned. Evidence was also offered of the prisoner's confessions of having sold the boy, Corn, in Virginia, and connecting Corn with the prisoner in traveling together from the county of Stokes, where Corn lived, on to the Virginia line.
Attorney-General for the State.
J. H. Bryan and Morehead for prisoner.
The prisoner's counsel contended that the act of Assembly was inoperative, for the reason that it contemplates that a part of the transaction constituting the offense must take place in another state. (2) That actual violence is necessary to be used as a means of taking him from the State, and no such violence was proved. (3) That the taking was from the county of Stokes, and that the county of Surry had no jurisdiction of the offense.
His Honor was of opinion that the statute was sufficient to prohibit the taking of free Negroes from the State, under the circumstances there specified. That although there was no evidence of violence used in taking the Negro from the State, any means equivalent to actual violence, as deception, seduction, and persuasion, would meet the requisitions of the statute. That although the Negro may have been taken from Stokes County, yet if the prisoner passed with him through Surry County, and from thence immediately into the State of Virginia, that would be a sufficient taking in Surry. His Honor instructed the jury, that if the free Negro consented to go, and be sold by the prisoner, this consent would deprive the act of its criminal character, (11) and it would be no offense. But if the prisoner took the free Negro from Surry County into Virginia by practicing a deception upon him — as that he was to go simply on a trip over the mountains, or by similar means, with the intent to sell and dispose of him, he would be guilty. That the taking must be with the intent to sell and dispose of, and that it must be from this State to Virginia. The prisoner's counsel insisted that there was not evidence of an intention to sell the free Negro, entertained by the prisoner before he left this State. His Honor then charged the jury, that if they believed the prisoner sold the Negro, Jim Corn, into slavery, in the State of Virginia, this fact, and the other circumstances in the case, were evidence to be considered by them on the said question of intention, and from which they might find said intention on the part of the prisoner, whilst in North Carolina.
The jury returned a general verdict of guilty. The prisoner's counsel moved for a new trial, on the ground of error in the instructions as specified; and also moved in arrest of judgment; both of which motions were overruled, and sentence of death being pronounced upon the prisoner, he prayed an appeal to the Supreme Court, which was granted without security, it appearing that he was insolvent, and unable to give bond.
There was no evidence that the free Negro was taken and conveyed out of this State by violence; but his Honor was of opinion, that the statute embraced cases where the object was affected by "deception," "seduction," or "persuasion" — in other words, that the statute embraced cases in which fraud is the means used, as well as cases where force is resorted to.
The original act was passed in 1779. This is the first time a construction has been called for, in reference to the section in respect to free Negroes; whereas, its fellow, the section in respect to slaves, has been very frequently before the Court, and has given rise to much refinement and subtle disquisition. For the purpose of avoiding (12) this, we pass over several points which have been presented, and confine ourselves to the duty of endeavoring to fix a construction, so far only as is necessary to the decision of the case before us.
The court below erred in extending the statute to cases where fraud is the means used. The statute creates a felony only where a free Negro is, by force, taken and conveyed out of the State, with an intent to sell him as a slave. The 10th section, Revised Statutes, chapter 34, in regard to slaves, and the 12th section, in regard to free Negroes, reenacting the act of 1779, are expressed in the same words, with these exceptions:
1. The former has the word, "steal" — the latter omits it; why? Because free Negroes are not property, and, therefore, not the subject of larceny.
2. The former has the word, "seduction" — the latter omits it; why? This is the point upon which the construction turns. The former uses the words, "violence or seduction," the latter uses the word, "violence," and leaves out "seduction." It cannot, therefore, be construed, as if the word, "seduction," had not been left out, without considering the omission as a mere act of negligence, which would be indecent. It is certain, "seduction," used in the one section to denote means of fraud, as distinguished from force, is not used in the other. Consequently, the two sections do not admit of the same construction.
The idea, then, suggests itself, why should there be a difference? In the language of my Lord Coke, "this is the very lock and key to set open the windows of the statute." The former is for the protection of the owner of a slave, the latter for the protection of the free Negro. The injury to the owner is the same, whether his property be taken away by force or fraud. It is otherwise in regard to a free Negro. As a subject of the State, he has a right to expect protection against force; but if he yield to seduction or persuasion, or allows himself to be beguiled by fraud, and of his own accord goes out of the State, it is his own folly. And although he has the protection of the State, and can bring an action for damages, he has no right to call for protection by the use of the strong arm of the criminal law, when he consents to the act, and does it of his own folly.
The construction of a statute which uses the word "violence," and omits "seduction," which is used in a section immediately preceding, must be strained, if it is made to take in a case of (13) seduction, or persuasion, or deception, or any other term used to denote fraud, as distinguished from force. A parallel case is that of rape. Females are protected against force by making the act felony; but if the object is effected by seduction, persuasion, or deception, it is her own folly — her misfortune.
3. The former uses the words, "take or convey away"; the latter, "take or convey out of this State into another." Why? The former was intended to protect the owner of a slave from any felonious taking or carrying away of his property. The latter was more sparing in the creation of a new felony, because, if a free negro is taken by force and carried from one part of the State to another, so long as he is left in the State, his remedy by action is deemed a sufficient protection.
4. The latter omits the words, "or with an intent to appropriate to his own use." Why? We suppose, for the reason that it was not considered probable that any one would, by violence, take a free Negro and carry him out of the State with an intent to make him a slave, and keep him in his own employment. The danger apprehended was the intent to sell him as a slave; and the statute is therefore restrictive to the end which was apprehended. This difference is noticed, simply for the purpose of contrasting the two sections, whereby it will appear that the words are precisely the same, except when it was intended to make a difference.
The statute uses the expression, "or by any other means." What effect is to be given to this? It is used in both sections, and signifies any other means of a like kind, in the sense of "otherwise." There is a clear authority for this construction in regard to statutes concerning the right of property; a fortiori, it must be so, in regard to a statute creating a new felony. Dwarris on Statutes, 778, 4 Rep., 3. "Violence" is a general term, and includes all sorts of force. Any other means of a like kind, adds nothing to the meaning, and is surplusage, or a generality, thrown in ex abundante cautela. So, the 10th section, having provided against stealing, and taking and conveying away by violence or seduction — that is, by force or fraud — covered the whole ground; and the expression, "by any other means," is mere surplusage.
The idea of taking and conveying away a slave, considered (14) as property, or a horse, or a dog, by seduction, as distinguished from laying hands on them, is intelligible; for they may be tolled or enticed away, and the injury to the owner is the same as if it were done by force. But how a free Negro, who is an intelligent being and a free agent, can be taken and conveyed out of the State unless force is used in taking him, cannot well be conceived. Taking, unless used in the sense applicable to property alone, cannot be applied to a free agent, so as to exclude the idea of force, as the very word imports force; and so, taking and carrying a free Negro out of the State, by seduction or persuasion or deception, are incongruous terms; and hence the omission of the word seduction, in the section concerning free Negroes.
If this section includes fraud, it necessarily extends to all kinds of fraud. Consequently, if one, by a bare falsehood, induces a free Negro to go out of the State, and there is the intent to sell him as a slave, the felony is consummated the instant the Negro crosses the line; for it is not necessary that he should be actually sold as a slave, the intent being the gist of the crime. So, there is not only a new felony created by the statute, but a new species of felony, depending upon the thought and not the deed — a felony, without any overt act. Such a construction would violate all of the analogies of our criminal law, which, to constitute treason or felony, requires some outward, visible act, about which there can be no mistake; and does not allow the life of a citizen to be forfeited, merely for using words, no matter what may be the intent.
It struck his Honor, that a construction including all sorts of fraud, as well as force, was too broad; and hence he was inclined to make an exception, where the free Negro was privy to the intent, and consented to go and be sold as a slave, under the expectation of sharing the spoils. The necessity for making this exception concedes the whole question of construction. The statute is first to be added to, by inserting the word seduction, and then by adding a proviso, that if the free Negro was privy to, or had reason to believe the intent was to sell him, then, and in that case, it should not be a felony within the meaning and purview of the statute, unless he was taken and conveyed out of the State by violence. The statute contains no such proviso. If it extends to fraud at all, it includes all cases of fraud. The court has no right to make any exception; and yet it is conceded that it could not (15) have been the intention to include a case of fraud, where the free Negro is privy to the intent, and the bait or means of seduction held out to him is, that he should have a share of the spoils. A false promise of this kind is the means of seduction that would most frequently be resorted to; and surely a wretch who would listen to it, has no right to call for protection.
The necessity for making an exception proves that this statute does not include cases of fraud. It could not have been the intention of the framers of the statute to make the life of a prisoner depend upon his being able to prove that the free Negro was privy to, or had notice of, the intent.
PER CURIAM. Judgment reversed, and venire de novo awarded.