Newbern,

March Term, 1792.

#### The STATE versus HIGGINS.

INDICTMENT on the 21 Hen. 8, 7, 183. It appeared in evidence, that the prisoner was a clerk to the prosecutor (a merchant) whose store he attended: that he had sent a parcel of goods from the store, to a person who resided at a distance, with directions to sell them: that he had not communicated this transaction to the prosecutor, or any of his other clerks, and had made no entry of it in the books.

Harris and Martin, for the prisoner,

contended that he could not be found guilty on this indictment.

1. Because he stood not to the prosecutor, in the relation of a servant, which the statute requires, and the indictment describes.

2. Because the goods embezzled, came not to his hands by a delivery of the nature of that described in the statute, and the indictment.

I. They said that the words of a statute are to be taken in their ordinary and most known signification, not so much regarding the propriety of grammar as their general and popular use: and cited 1 Comm. 59.

*63Now the statute requires that the offender be a servant. Perhaps this word in its most extended grammatical sense, may include every person labouring for another, and receiving hire or payment. In its ordinary and popular signification, it reaches no farther than family domestics, and personal attendants. The Painter who draws my picture, the Surgeon who pulls out my tooth, the Taylor who makes my clothes, the Clerk who writes in my office or attends to my store, are in the first sense my servants; they all labour and are employed by me, and receive payment. Yet were I to describe them by the appellation of my servants, I would not be understood to mean them; or, if I was, I should be censured for giving them an appellation which in the general and popular acceptation of it is confined to persons of an inferior rank.

A celebrated crown law writer, after speaking of the statute upon which the prisoner is indicted, and the 3 & 4 Will. & Mar. 9, says " so the foregoing larcenies, by breach of trust, by moe" nial servants and lodgers, the legislature has added two others, " &c.” 1 Hawk. 139, sect. 17. He certainly understood that the servants to which the statute relates, are only such as are mœnial, who live intra mœnia within the walls, in order words domestic servants.

The author of the commentaries, after mentioning mœnial servants apprentices and labourers, says “ there is a fourth species of servants, “ if they may be so called: stewarts, factors and bailiffs.” 1. Comm. 427: which shows that, in his apprehension, the epithet of servants, in ordinary and popular use, is not applicable to Stewarts, Factors, &c.

The same writer, in the next page, says, " a master may by law, correst his apprentice or servant.” Does he mean that a gentleman could slogg his stewart, or a merchant his factor? Certainly no.

If the rule of construction, which we have laid down from the commentaries, be a true one: and if the word servant, in its common and popular use does not comprehend that description of persons, employed in the capacity in which the prisoner attended the affairs of the prosecutor, it follows that he did not stand to him in the relation contemplated by the statute.

This construction would be the true one in ordinary acts, But this is a pœnal statute—one pœnal in the highest degree. Pœnal statutes must be construed strictly, 1 Comm. 88 Consequently should the word servant be restrained to its ordinary signification.

II. The statute confine the things which may be subject of the offence to such as caskets, jewels, money, goods and chattels, as are delivered to servants safely to be kept to the use of their masters or mistresses.

The evidence here is of goods delivered to be sold.

Badger for the State.

Whatever else may be said, it surely, cannot reasonably be denied that the present case is strictly within the mischief for which the act intended to provide a remedy that is to say the stealing of goods by persons entrusted to manage them for the o*64wner an offence not sufficiently punishable at the common law. A merchants’ clerk, as the prisoner was, has greater opportunities to embezzle property, than a servant of any other description; having by the nature of his business, the custody of more goods and more money. It seems peculiarly necessary therefore, that such persons should be included in this act; for otherwise we are guarded against the smaller evil, and exposed without defence to the greater.

And I contend that this case is also within the words of the act. The words master and servant, according to their popular use, imply a certain relationship, and wherever that relationship is found, there is properly a master and servant. This relationship consists of the right of superiority and command on one side, and the duty of service and obedience on the other, and this certainly exists between a merchant and his clerk. The nature of the service is an immaterial circumstance; for whether a man assume the care of a statue or store, the business of a groom or clerk, he is still a servant; if he have taken upon himself the duty of obedience, and given the rights of authority to another. The right to command, the obligation to obey is equal in both cases. The time and service in both instances equally belong to the hirer. The contract, which produces the relationship, is the same, and there fore the relationship itself is the same. The politeness of modern times it is true, has not often applied this term to merchants’ clerks, some of whom are of good families, and would resent the appellation: but this by no means proves that they are not as clerks, substantially servants, and therefore strictly within the meaning of this act.

The term servants, in common language, is very seldom applied to apprentices to merchants, and to several kinds of artificers; yet it never has been denied, I believe, that they are properly servants, and but for the express exception, would as such be within the act.

The very expression, “moenial servant," which is very common, implies that there are servants of a different kind, and otherwise the epithet mœnial, would be insignificant and useless.

The word servant, is used in the act without any epithet to qualify or limit its meaning, and yet it is contended that this general term, which applies equally to all kinds of servants shall be contended to one kind only, to wit, mœnial servants. Had such been the intention of the legislature, that common expression must have occured to them, and would certainly have been adopted. I admit that the mechanic to whom were send a job, is not our servant, nor to the principles for which I contend, imply that he is. There is no authority on one side, no subjection on the other. The mechanic is employed, not directed. His time is his own, not ours.—He my postpone our work to make room for another’s. The relationship between him and us supposes no superiority on our side, and therefore it is not the relationship which subsists between master and servant.

As to the second point,

The goods it is true, were entrusted to the prisoner to be sold, *65but they were also in his custody to be kept fill the sale, and at the time of embezzlement they were in his keeping, not having then been sold. His authority to keep, had not then expired; he therefore held them under that authority, and therefore his case is with in the act.

'Till a fair purchaser offered, his authority was merely to keep.

Neither of these objections is entitled to much favour. The first admits that persons standing substantially in the same situation with the prisoner, only performing different services, and furnished by the nature of their employments, with less power to do mischief, would for the same act, be punishable as felons. The second admits that the prisoner, who attempted to ruin his employer, by embezzling his property, was entrusted to sell it for his benefit, was under engagements, and had received wages for that purpose.

Admitting however, that the prisoner is not to be considered as servant, and that the goods were not delivered him to keep, admitting that he is not within the reach of the statute, then he is guilty of larceny by the common law.

It is true that a taking is essential to a larceny; and it is said that this offence cannot be committed where there is a delivery of goods from the owner to the offender up on trust. And the instances mentioned, are the loan of a horse, and the sending of goods by a carrier. These instances however, it is to be observed, differ widely from the present case, the owner in these instances parting entirely with the possession, which for the time belongs exclusively to the carrier, and borrower, each of whom has a special, property in the thing delivered. In the present case the offender had not the exclusive possession. The owner had not parted with his possession.—The goods were in his store, subject to his controul and direction, which he occasionally exercised. Had a trespass been committed on these goods, the clerk could not have maintained an action in his own name, but the suit must have been brought in the name of the owner. During every moment of time whilst the prisoner was in the owner’s store, the owner might have done whatever he pleased with the goods. The store in which the goods were kept was in his possession, nay the prisoner himself was in his possession (if I may to speak) having engaged to serve him for hire. As the owner had not parted with the possession of the goods, of course the prisoner could not have the possession of them. If he had any thing, therefore it was only a care and oversight, and the embezzlement of goods in such a case was felony at the common law. The distinction is clearly expressed in 4 Blackstone 231. If he had not the possession, but only the care and oversight of the goods, the embezzling of them is felony at the common law. Here the goods were under the prisoner’s care, not in his possession.

It remains therefore only to shew that though the indictment be founded on the statute, the prisoner may be found guilty of the offence at common law, and to this the 2 Hawk. P. C. 251. is in point.

*66Whereupon Harris and Martin prayed to be, and were, hear on the latter part of the argument of the counsel for the state. The said—

The charge against the prisoner presenting itself under another point of view, if behooves us to consider whether the facts charge in the indictment, constitute an offence at common law?

Unless it was an offence at common law, at the time that statute was passed, it is certainly none at this day. Of this the statute furnishes us a negative proof. In the preamble, it is said, after stating such a fact as the one in the indictment, which misbehaviour so done was doubtful at the common law, whether it was felony or not.

The preamble of a statute is deemed true, and a good arguement may be drawn from it. 1 Inst. 11.

Hence, it must be deemed true that it doubtful. If it was

doubtful then, it cannot be certain now. With this negative evidence in our hands, we ought not to fear an adverse verdict; with may claim a favourable one. For in dubiis semper in favorem untœ.

Yet, in taking a retrospective view of the principal and me important decisions of courts before the reign of Henry VIII, we will perhaps incline still more strongly to believe that, when the statute was passed, the offence under our consideration, was deem a private injury only, and no criminal offence.

We do not mean to say, that the time never was, when such misbehaviour was considered as a criminal offence, nay as felony. In England, as in every other country, during the early age of civil society, no difference was made between moral and civil offence. Many facts were considered as larcenies, which have since been looked upon only as private injuries: thus bailiffs, receivers, and administrators, were said to steal goods, if they did not give their accounts: false weights and measures, trick in trade, and other deceits and impositions, are described in the Mirror as instance of larceny. 2 Reeves, 351.

Towards the year 1470, under the reign of Ed. IV, it was held that where a person entrusted goods to the case of a servant, the servant could not take them feloniously, because they were in his possession. 10 Ed. IV. 14.

Above three years after the following case happened:—

One had bargained with a man to carry certain parcels of goods to Southampton. The man took the parcels, carried them to another place, broke them open, took out the goods, and converted them to his own use. Whether this was in law a larceny, was debated with much difference of opinion. It was argued, that a possession of the goods was given by the bailment of the owner; and neither felony nor trespass could be committed of them by the baillee; for he could not be said to take them vi et armis, & contapacem. On the other side it was said, that a man’s act becomes felony or trespass according to the intent. If a man abuses a distress,he is a trespasser; and so here all confidence implied in the bailment was superseded by the taking, which discovered *67his intent to have been bad from the beginning. It was also said, that this was different from a bailment; for it was only a bargain to carry, and what followed shews that this was only a presence to gain an opportunity for stealing. At length, one of the justices has recourse to a refinement, which admitted some of the above reasoning, but exempted this case from the conclusion following upon it. He admitted, that a man who has the possession of goods by bailment, cannot commit felony of them; but here, he said, the goods within the parcels were not bailed to the carrier, but the parcels themselves; and therefore taking them was not felony: but when he broke them open, and took out the goods, he did what be had no warrant for, and appeared in a very different light in the eyes of the law. Thus, for instance, if you deliver a tun of wine to a carrier, and he fells it, this is neither felony nor trespass; but if he takes any out of the tun, and tells it, that is felony. In like manner, if I leave the key of my chamber with any one, and he takes any thing out of it, this is felony. The reason to support these cases was, that the things not specifically and expressly delivered, were not in truth bailed, and therefore the party, in taking them, intermeddled where he had no trust.

These were the arguments used before the council; the case was afterwards adjourned into the exchequer chamber, and the opinion of all the judges was taken. There it was agreed by all the judges, except one, that generally where goods were bailed to another, he could not take them feloniously. They held also, that when a possession to obtained had once determined, then the bailee might commit felony in taking them; as, if I bail goods to a man to carry them to my house, which he performs, and afterwards takes them, it is felony; because his possession under the bailment ceased when he delivered them at the house. They argued some points upon the nature of possession. If a guest in an inn takes a cup, he is a felon, because he had not properly a possession, but only the use of it while there. The same of a cook or butler; they are only ministers as to the things within their care; but have no possession, which, in these cases, is always construed by law to be in the master. But it would be different, perhaps, says the book, if goods were bailed to a servant; for as they then would be in the actual possession of such servant, he could not commit felony of them.

After all, as to the principal case, whether it was agreed, that the bailment ceased upon breaking the parcels open, and the carrier thereby forfeit the legal priviledges annexed to him as bailee, and in so taking the goods he was considered as a common person; or whether it was upon the whole thought, that this was not a bailment, but merely a bargain to carry; it is not stated in the report upon which of these grounds they determined; but it was certified to the chancellor by the major part of the justices, that this man was guilty of felony. 3 Reeves, 410.

Towards the year 1485, some questions of larceny similar to the one above cited were debated.

*68It was propounded by Hussey, who was then chief-justice, when other, is a shepherd took sheep, or a butler the plate, under hi care, it could be called felony; he himself thought it was; and related the case of a butler who was hanged under such circumstance to which a similar case was added by Haugh, of a goldsmith, when had taken some things that were entrusted to his charge. In answer to these, Brian argued that it could not be felony, because neither of these persons could be said to take the things vi et armis, while he had them under his care: and of this opinion were the justices. This was giving a blow to the determination in the time of Edward IV. and expressly contradicted some cases that were then taken for settled law, and argued upon as such; especially that of the butler. However, we find this case of the butler was understood

otherwise some years after, and a dictinction was taken between the possession a butler has while in the master’s house, and the possession of a servant entrusted out of the house. It was propounded by sergeant Pigot, in the court of king’s bench, to sergeant Cutlar, in this

way: If I bail a bag of silver to my servant to keep, and he goes away with it, can this be felony? Cutlar says yes; for as long as he is in my house, or with me, that which I have delivered to him is adjudged in my possession: thus if my butler, who has my plate in his custody, runs away with it, this is felony; the same if a person having the care of my horse goes off with it; because in both

these cases the thing remained all along in my possession. But if I deliver a horse to my servant to ride to market, and he rides away with it, this is no felony; because he came to lawful possession of the horse, by the delivery out of my custody. The s fame if I give him a bag to carry to London, or to pay away to some one,

or to purchase something; if he goes away with these it would not be felony; because they were out of my possession, and he had lawful possession of them himself. To this Pigot assented, adding that it might, in all these cases, have an action of detinue or accompt, which idea of possession is consonant to one of the principles laid down in the case so often alluded to 4 Reeves, 178.

In the time of Henry VIII, says Mr. Reeves, a breach of trust, and embezzlement of effects confided to the custody of a person, were thought not to be a felonious taking and carrying away. This kind of fraud had of late grown common, from the impunity it enjoyed; and many now thought, that, as it carried in it much of the mischief, it deserved the punishment annexed to felony.

The statute upon which this man is indicted, was accordingly passed. It is mentioned in the preamble of this act, as a doubt whether this kind of taking was larceny; a doubt raised, perhaps by the case determined in 13 Ed. IV. which we have before mentioned, and which is thought, and not improbably, to have given some occasion for making this statute.

Tho’ the instance of bailment there before the court was, or might be thought, something like a breach of trust reposed in servants, and was determined to be felony; yet the principles there laid *69down and agreed to, almost unanimously, led to an opposite conclusion; and there needed all the helps of distinctions and technical nicety to take even that case out of the general rule there laid down. Besides, there is at the bottom of that report an opinion, which qualifies any inference which otherwise might be possibly drawn from it as to this; for admitting that a cook and butler would be guilty of felony, if they converted the goods within their respective departments to their own use, it is there said, that if the same things were bailed to a servant, perhaps, as they would be in his possession, he could not commit felony of them. About three years before, it was said by one of the judges, “ If one commits the care “ of his goods to his servant, the servant cannot take them feloniously, because they were in his possession.” These were direct authorities upon the point, and, joined with the reasoning upon bailment and possession, sufficiently shew what were the opinions of lawyers in those times respecting this question. 4 Reeves, 284.

The case of the carrier, the butler, the guest, fall short from the present. Their possession and power over the things in their hands was temporary. They could not transfer the property; the master was at all events to have it back again. In no case was it to be otherwise. In this, the clerk might when he pleased, lawfully so to dispose of the property, that it should never return to the merchant. His possession was quite of a different nature. Theirs to keep; his to fell.

So strictly have courts adhered to the notion of possession, and its consequences, that in 3 Hen. VII. the judges went so far as to agree with Brian (who, it may be observed, was one of the judges that dissented from the opinion of felony in 13 Ed. IV. in the exchequer-chamber), that neither a shepherd nor a butler could commit larceny of their sheep or plate, because it could not be done vi et armis; so much were the opinions changed from what they had been in the reign of Ed. IV. when these cases were stated for felony, and allowed without debate. This doctrine we have seen was again discussed in the last reign; and it seemed, in the instance there stated, to be agreed upon so decidedly against the felony, as to call for a formal declaration of the law by statute. Thus flood the law upon this subject towards the end of Henry VII’s reign, and so we may suppose it was understood at the time this statute was made. After all these authorities, concludes Mr. Reeves, we may be excused in differing from those who think that the point of law which is the subject of this statute was so well settled before, that the doubt about it mentioned in the preamble, is one of those which have much enervated the principles of common law, and could not be the doubt of any lawyer. 4 Reeves, 285.

Lord Hale considers the offence charged on the indictment, as created by the statute. For, he says; Before the statute of 21 Hen. hap. 8, 7. if a man had delivered goods to his servant to keep or cary for him, and he carried them away animo furandi, this had not *70been felony, but by that statute it is made felony, is of the value of forty shillings; but the offender shall at this day have his clergy; but yet if an apprentice doth this, or if a man delivers a bond to his servant to receive money, or delivers him goods to sell, and he accordingly sells and receives the money, and carries it away animo furandi, this is neither felony at common law, nor by this statute. 2 H. H. P. C. 505.

The same doctrine is laid down, Co. P. C. p. 105. 26 H. 8. Dy 5. a. b.

Having, we trust, satisfactorily shewn, 1 ft. that the prisoner is not within the reach of the statute, and 2dly, that the facts charged do not constitute the offence of larceny, we proceed to shew that even if the prisoner was guilty of larceny, he cannot be convicted of it upon the indictment, which the grand jury have found against him.

It is not contended by the counsel for the state, that if he be guilty of any offence at common law, he may be guilty of any thing else but larceny.

Hawkins has been read, in order to establish the position, that though an indictment be founded on a statute, the prisoner may be founded guilty of an offence at common law.

Although the truth of this position, in a certain degree, is not to be denied now, it is safe to say, that it is not generally much less universally true. The origin of it may be traced to Pace’s case. The Court, in that case, decided that if persons be indicted, especially on the statute of stabbing, 1 Jac. 16, 6, 351, and the evidence be not sufficient to bring them within the statute, they may be found guilty of general manslaughter, at common law, and the words contia for mam statuti rejected as senseless.

If the present indictment did not conclude contra formam statute it would be insufficient, and no judgment could be given upon it: because the offence charged is only prohibited by statute, and not by the common law. See 2 Hawkins, 251.

If an indictment on the statute of stabbing, above cited, did not conclude contra formam statuti, still it would be sufficient and good judgment could be given upon it, as in the case of general manslaughter, or manslaughter at common law, because the facts charged in such indictment, are offences both at common law, and under the statute,

The same verdict, and judgment may be given upon such an indictment, concluding contra formam statuti, in case the evidence does not bring the prisoner within the statute.

Thus if one be indicted, on the 3 El. 9. 304, for perjury, and it be not stated, that he wilfully and corruptly committed perjury, but either that he falsely and voluntarily, Savil 43, or falsly and corruptly, Hetl. 12, or falsely and deceiptively. 2 Leo. 3 Leo. 230, Shower 190. In all these cases, the indictment is bad for an offence on the statute, but is good at common law.

Yet, if the fact proved, amounted to the crime of larceny, still the prisoner at the bar, could not be found guilty of that offence, be*71cause it is not charged in it.

It is not sufficient that the offence charged, be prohibited both at the common law and by the statute, in order to support a verdict, by rejecting the words contra formam statuti: it is still necessary that the technical words, requisite in the description of the offence at common law, be inserted in the indictment.

An indictment ought to have proper terms of law. 4 Comyns, 398.

The word cepit necessary and requisite in an indictment for larceny. 2, H. P. C. c. 25, § 55, p. 224. no other will answer.

It is not in the indictment.

The position established in the latter part of the argument for the state is neither universally or generally true. It is true only in the case of an indictment respecting facts prohibited, both at the common law and by statute: neither is it true, in all such cases, for it will fail, if the indictment does not contain a technical description of a common law offence.

I. The prisoner therefore cannot be found guilty under the statute.

1. Because he does not stand in that relation which the statute requires, and the indictment describes.

2. Because the goods did not come to his hands, by the delivery, which alone can bring his offence within the statute.

II. He cannot be found guilty at the common law.

1. Because the facts charged are made criminal by the statute only.

2. Because the offence of larceny is not charged in the indictment.

Williams, J.

told the Jury he thought the prisoner might be found guilty either at common law, or upon the statute.

Ashe, J.

thought he might be found guilty at common law, but could not be convicted on the statute.

The Jury withdrew, and found the prisoner not guilty of the felony upon the statute, but guilty of the felony at common law.

On the next day, the prisoner was brought to the bar, and being asked what he had to say, &c.

Harris & Martin moved an arrest of the judgment, and filed reasons.

The counsel for the state, not being ready to enter upon an argument, on this motion; the consideration of it was postponed till next court: and

On motion of the prisoner’s counsel, it was ordered that the prisoner be discharged from confinement, on his giving bail, before some of the Justices of the county of Craven, residing in the town of Newbern.

In September 1792, there was no court.

*72And at March Term, 1793, the consideration of the motion, in arrest of judgment was taken up, and without any argument.

Judgment arrested.

*** The prisoner, had remained in jail, not being able to procure bail, upwards of a twelve months, and Mr. Sol. Gen. Jones partly out of compassion to him, and partly on account of the late hour at which the court came to the cause, on the last day of the term) did not oppose the motion in arrest.