#### State vs. Hall.

was indicted fer stealing a male slave, the property of the .9.4. prosecutor, against the form of the act of Assembly ; and be was found guilty as charged.--Whereupon, Badger and $ocelin moved an arrest of judgment; for that the indictment did not state the stealing to have been with an intention to sell os* dispose of to another, nor with an intention to appropriate to his own use. The words of the act are, “ That any person or “ persons wh<? shall hereafter steal, or shall by violence, seduction, or any other means, take or convey away any slave or “ slaves, the property of another, with an intention to sell or s‘ dispose of to another, or to appropriate to their own use, such 66 slave or slaves, and being thereof legally convicted ; or shall “ upon his arraignment} peremptorily challenge more than M thirty-five jurors ; or shall stand mute, shall be adjudged guil-*l ty of felony, and shall suffer death without benefit of clergy.” They said there was no such thing at the common law as the. mealing of a slave 5 not only because it did not recognize slavery, but also because larceny can be but of inanimate or irrational. Subjects s wheteas a slave possesses the faculty of reasoning and the power of volition like other men. If carried away with his consent, it is seduction ; if otherwise, he can declare his owner and be restored to him s he is not in his nature, capable like those things "thick are the subjects of larceny, of being concealed forever from his owners : he was not a subject of theft by the Ro'j.i'i law, nor by the law of any country where slavery has been tolerated ; nor could a villain be stolen by the common law. Then the stealing of a slave is not now felony in this state, unless done under all the circumstances mentioned in the act, and that contains a circumstance not stated in the indictment. The Judges of a free country are bound to decide upon penal laws, especially those of the capital kind, according to the letter; they may perhaps be governed by the spirit so far as to restrain their operation in causes falling within the letter, but evidently not witnin toe meaning, but not to extend the meaning beyond the to b.siug a case by construction under the punishment of *-‘i' a- t, which is not within its letter. This rule is indispensa» 'jbk- to the safety of everv si-ásen ; it protects him in the eniov*106ment of bis life, against every possible attempt to condemn him, under the pretence that he has offended against the meaning,of a penal law, which meaning were construction permitted in such cases, may be amplified at pleasure : therefore, where' the third of H. !, ch. 2, enacted, “ that if any person shall for-lucre, take any woman, See. and afterwaids she be married to such misdoer, &c. that he should be capitally punishedthough the taking for lucre seems not to be a circumstance to enhance the offence, yet the indictment must state that circumstance; for, says the book, such are the words of the Statute, 4 Bl. C. 208. — -~If a statute enact that those who are convicted of stealing horses, shall be capitally punished, he shall not be thus punished who is convicted of stealing but one horse; 1 BL <£. 88-If a statute mike the stealing of sheep or other cattle to be a capital offence, the Judges shall not say what aniraals'are meant to lie included under the words, other cattle; 1 Bl. C. 88, so strict is the rule. Then with respect to the act of Assembly, the tvord “ steal” must be connected with and govern the words u slave or slaves, the property of another,” as well as the words “ take and carry away,” otherwise the fact of stealing no matter what will be a capital felony ; and as the words “ with intention,” &c. immediately followin continuation of the sentence, before any new sübject is taken up, without any disjunctive particle, in the same breath, and so as to complete the sense of the speaker, they are by all the rules of syntax, concommitant upon them, equally when governed by the verb “ steal” as when governed L*y the verbs 1,1 take and carry away ;” and then reddendo singula singulis, the act stands thus :J “ That any person or persons who shall hereafter steal any slave or slaves, the property of another, with intention to sell or disposed to another,or appropriate to their own use, such slave or slaves ; and that any person or persons who shall by violence,” &c. and thus the fact charged in the indictment is not the same fact with all its circumstances as is specified in the act; and being not guilty within the act, he is not guilty of any felony, and the judgment should be arrested.

üláere, Judge.

No rule of the common law expressly decides that the stealing of a slave is larceny, but there is a rule which says, the stealing the personal goods of another, with a ielonious intent, is larceny ; and a slave is the personal chattel of his owner: the rule protects every speceies of personal property, though not known as a subject of property when the law was found. With regard to the act of Assembly, it was passed in turbulent times, when it had become a practice to carry away slaves under pretence that they belonged to the public as confiscated, or were owned by disaffected persons or the like ; they were sometimes carried off privately and by stealth ; at other times openly and by violence: the word “steal” reaches the former case ; the words next following, repress the mischiei of *107a carrying away by open force, or by persuasion or other mean» than bv stealth, but nevertheless with an intention to appropriate to his own use : the word “ steal” ex' vi termini, includes an intention to appropriate to his ovra use, or to sell or dispose of to another, and therefore the intention expressed in the act, it applied to the case of stealing, is useless- and redundant. The offence meant by the legislature, is completely described without them by the word “steal,” but with respect to the latter branch, the taking and carrying away by violence, fee. do not necessarily import the intention mentioned in the act, and is not so detrimental and injurious as when accompanied by that intention % in that pare oi the act, the intention is a principal ingredient of the offence, and to that it is applicable, and not to the other y and I am of opinion not to arrest the judgment.

Haywood^ judge, concurred in opinion not to arrest judg-mem,

¿lucre — As the indictment comiudwl'against the form of the act, whether it were good ao-au indictment at the common law and whether iu all events-be was not entitled to clergy ; which is not taken away nulcsu-the indictment state every circumstance as attendant on the fact, that the act. itself states and brings the prisoner within the very letter. 2 M. H. P. C. 336, 344. Dyer, 183. 1 Bl. C. 88.