Opinion
January Term, 1813.
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 talking the slave, as the taking was on his own land, without any force or violence 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 16 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 defendant, 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 by Mrs. Kirby to assist in bringing up the clothes (226) from the place where they were washed; and whilst she was there the defendants Flowers and Hampton came up, and 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 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 Nan from the defendant, who prevented her from so doing. In making these attempts, Mrs. Kirby was once or twice pushed down by defendants, and bruised, but she was not struck, nor was any offer made to strike her; no force 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, and the case was sent to this Court.
The principle has long been settled, that an indictment for a trespass in taking property can be supported only 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 he 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; 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 up no more force was exercised than what was necessary to enable the defendants to retain possession of the negro, which they had already taken. The (227) 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 attach 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 indictable trespass. Judgment must therefore be entered for the defendants.
Cited: S. v. Phipps, 32 N.C. 19; S. v. Ray, ib., 40; S. v. Davis, 109 N.C. 811; S. v. Lawson, 123 N.C. 743.