Indictment for taking with force, arms, and violence, and carryingaway a negro woman from George M. Deadrick. — It was proved that George M. Deadrick had possession of the negro in the town of Nashville; that the defendant with two others started from home, about four miles from Nashville, when *Page 97 it was nearly dark. The two persons with him, who were sworn, did not know for what purpose the defendant was coming by town. Each of them had business in town, but neither of them knew each other's business. The defendant went to a house where there were negroes, returned, and, in passing along the streets, fell in with the negro woman coming from the spring. The defendant had horseman's pistols. He told the negro she was his property, and that she must go home with him.
The negro seemed opposed to going, though no violence was used. The witness returned with the defendant and negro home, and the negro was made to sleep upstairs.
The attorney-general relied upon 1 Hayw. 13; 1 Dall. 335, indictment for wilfully, maliciously, and wickedly killing a horse. Every act of a public evil example, and contrary to good morals, is indictable. Or such deceit or imposition, as no common prudence could guard against, is indictable. 2 Burr. 1199. And so are all offences of a public evil example. 3 Bac. Ab. 549.
WHITE and DICKINSON. — The defendant claimed the negro as his property, and had a right to take her wherever found. 3 Bl. Com. 4. A civil action alone would lie upon this transaction. An indictment cannot be sustained.
There was not any force, for whatever the negro might have used could not be a breach of the peace, no more than the opposition of a horse in the act of catching him. The act must have been accompanied with some violence to the person to make it indictable. 1 Haw. 260, 825.
If, as admitted, there was violence to the negro woman, she must be considered as personal property, with respect to which violence cannot be supposed. Actual, not constructive, violence must be proved, no actual violence has been proved.
The gist of this indictment is force and violence, which is not the case in cheats.
The circumstance of the defendant having pistols cannot be actual force, but if it were tantamount, the Act of Assembly has prescribed another mode of *Page 98 punishment which must be pursued, and no person can be twice punished for the same offence.
They relied upon 2 Haw. 301; 3 Burr. 1698, 1731, to show that it must appear from the face of the indictment to be an indictable offence.
The ordinary formal charges, with force and arms, are not sufficient, but must show that it is indictable by actual breach of the peace, as a riot, unlawful assembly, c. The attorney-general concluded. If there were any defects in the indictment we might entertain a motion to quash, or in arrest of judgment; but they cannot come in view on the trial of the issue. It is urged that the defendant had a claim to the negro in Mr. Deadrick's possession, and therefore he had a right to take her, relying upon the doctrine of recaption in 3 Bl. Com. 4.
There is no room for the application of this principle here. When property is lost, and found again, the owner may take his property without inquisition or other process. But when an individual claims property to which another has a claim also, he is not justifiable in using any kind of force, either actual or implied, to regain property. The law is the arbiter, and recourse must be had to it. If two men are disputing the property of a horse, and he is in the possession of one, being in his use, the other cannot, without violating the order of society, take and carry him away.
It is not necessary that there should be personal violence to make an indictable offence.
The examples of indictments for cheats, 3 Burr. 1199, per Wilmot J., killing a horse, 1 Dall, 335; breaking a house, as in Burrow, — all show that personal violence is not necessary to make an indictable offence; the case in 1 Hayw. 13, per Williams J., decisively puts the case before the Court at rest. That was an indictment for trespass, in taking negroes, — it is in point, and the reasons given by Judge Williams are irrefragable. It is of the first moment that this species of property should be inviolably guarded from the control of others than their master. *Page 99
They differ from all other kinds of property; they have reason and volition. Where a slave is in the possession or ordinary employment of a person, and another takes such slave away, it should not be matter of inquiry with the Court whether the negro was willing to be taken or not.
Verdict for the State, and at another day the defendant's counsel moved the Court to impose a fine. Per Curiam: Is the defendant in court? For the Court have a right to his presence when it is moved on his behalf to inflict the punishment.
The Court deferred giving any opinion, and at another day the defendant came in, and was fined only.