
    
      The State vs. John L. Brown.
    
    1. The statute of 1754, (7 Stat. 426,) is not repealed by the statute of 1821, (7 Stat. 460,) as to the offence of aiding a slave in running away and departing from his master’s service. The two statutes relate to distinct matters ; the first punishes for aid and assistance rendered the slave, in the act of running away and departing from the service of the master; the latter punishes for harboring, concealing, or entertaining a slave already a runaway.
    2. Where an indictment, under the Act of 1754, under which the prisoner was convicted of aiding a slave to run away and depart from the service of the master, was alleged to be defective, inasmuch as it was not alleged therein, that the prisoner knew that she was a slave, the general rule was held to apply, that where a statute creates a new offence, it is sufficient to charge the offence in the words of the statute, which was done.
    3. But where a statute declares that certain acts shall constitute an of-fence already existing, at common law, then the offence should be set out according to the usual forms. Tide 3 McCord, 533.
    4. The prisoner’s ignorance of the fact that the woman was a slave, might have been an excuse ; but his knowledge of her condition as a slave, was not of the essence of the crime necessary to be alleged and proved by the prosecutor.
    5. A scienter is never necessary to be alleged, except when the crime is not complete without some extrinsic circumstance within the prisoner’s knowledge.
    6. The legal condition of the woman, from color, being that of slavery, it was not necessary to allege a knowledge of what the law presumed.
    7. Although the indictment did not allege the intention of the prisoner to aid the slave in going beyond “the limits of the State,” it was no defect. These words not being in the Act, it was not necessary to allege or prove them. From the omission of these words in the Act of 1754, as distinguished from Acts in this respect, prior to that period, it is rather to be concluded that the legislature intended to make the offence, complete without them.
    8. Where it was alleged in the indictment that the prisoner did aid a certain female slave, (naming her,) “the property, &c. in running away and departing from the service,” &c. by means whereof, the owner, “from thence hitherto has been deprived of the use and benefit of the said slave.” It was held that the offence was sufficiently charged.
    9. The Act of 1754, creating the offence of aiding a slave to run away, is not restricted exclusively to the aiding of male slaves, but is comprehensive enough in its terms to include both male and female.
    
      10. Though the general rule is, that penal statutes are to be construed strictly, yet it is also a rule that the courts are not to narrow the construction so that offenders may escape. Vide Dwarris on Statutes, 79, (9 Law-Lib.)
    
      Before O’Neall, J. at Fairfield, Fall Term, 1843.
    The prisoner was indicted under the Act of 1754, 7 Stat. 426. 1st. For inveigling, stealing, and decoying away the slave Hetty, the property of Charlotte Hinton, employed by one John Taylor; and, 2nd. In aiding such slave to run away and depart from the service of John Taylor.
    The prisoner lived with, and worked with Taylor, until a short time before this offence. He was frequently seen in the morning, just before day, slipping out of the kitchen where the woman lodged.
    In. November, a week or two before court, the prisoner inquired of a very near neighbor of Mr. Taylor’s, whether he was going to take Hetty to Columbia. He replied, he was not. In that conversation, the prisoner said he would not for $500, take old Hetty out of John Taylor’s possession. This was on Sunday. In the course of that week, he inquired of Mr. McGraw, Mr. Bailey’s overseer, if his wagon was going to Columbia. He told him it was. He asked if he was going. He said not. The prisoner then said he had business below Columbia, and asked to be permitted to put some things on the wagon. McGraw told him he could do so. The prisoner had been previously talking of going with Lavender below Columbia, to get employment as an overseer. The witness, Lavender, came by for him, but he was gone.
    The prisoner, on the morning the wagon of Mr. Bailey started, accompanied it, a negro being the driver, and opposite to Mr. Taylor’s place, the prisoner took up the bed and clothes of Hetty, and put them on the wagon. He and she were seen in company following the wagon on its way to Columbia. In Columbia, he obtained leave from Mr. Crawford, to put the negro woman’s bed and clothes in Mr. Crawford’s back store, where they were found by Mr! Taylor, on his pursuit to Columbia, and search for the woman. She could not, however, be found, while he remained. During court, he received a letter, (which by-consent was read) stating that she had been apprehended and was in Columbia jail. The prisoner returned immediately from Columbia, and on being interrogated by Taylor, told him he put her things on the wagon, and obtained, leave from Crawford to put them in his back room, but declared he had no intention to steal her. He thought she was going to Columbia, by his leave. The prisoner declared, on Wednesday evening, his intention to leave the country on Thursday morning, probably never to return. He made an effort to borrow a horse on Wednesday, to go below Columbia, but failed.
    The slave Hetty belonged to Charlotte Hinton, of Lexington. For about nine years, she had been allowed to hire her time about Columbia, and do pretty much as she pleased. For the last three years (including ’43,) she had been hired by John Taylor, (the brother of Charlotte Hinton,) who lived in Fairfield, and by whom the woman had not been suffered to act for herself in any way.
    The case was submitted to the jury as one of fact, and with all the care and caution, "which a case of life and death demand.
    The jury convicted the prisoner on the second count in the indictment.
    The prisoner moved the Court of Appeals in arrest of judgment, and for a new trial, on the following grounds :
    In arrest of judgment—
    1. Because the names of the grand jurors were not inserted in the indictment.
    2. Because the indictment charges the prisoner, with aiding a slave in running away and departing from her employer’s service.
    3. Because the Act of 1754, is repealed as to the offence of aiding a slave to runaway, by the Act of 1821, which renders the entertaining a runaway slave a misdemeanor.
    4. Because the indictment did not charge that the prisoner knew the negro woman, Hetty, was a slave.
    5. Because the indictment did not charge that the intention of the prisoner was to aid the slave in running beyond the limits of the State.
    
      6. Because the Act of 1754, so far as it refers to aiding a slave in running away is restricted exclusively by its very terms, to the aiding a male slave.
    7, Because the indictment did not charge as a distinct substantive averment, with time and place, that the said slave, Hetty, did actually run away.
    For a new trial—
    1. Because his Honor did not charge the jury that before they convicted the prisoner they should be satisfied he knew the slave was a runaway.
    2. Because the slave, Hetty, having been proved to have had the privilege, for twelve or thirteen years of hiring herself, and going and coming at her own pleasure, and accounting to her owner for her time; did not occupy the usual condition of a slave, and aiding her, therefore, under the circumstances, to change her residence, especially as that change was to get nearer her owner, did not come within the purview of the Act of 1754.
    3. Because the defendant acted as the agent of Charlotte Hinton, and took care of the slave to carry her to her mistress.
    4. Because the evidence shewed that the prisoner had no felonious intention whatever, as he delivered the slave to Mr. Crawford, of Columbia, and upon returning home, told Mr. Taylor, the hirer, that he had left her with Mr. Crawford.
    5. Because the jury convicted the prisoner on the second count in the indictment, under the mistaken impression that the offence therein charged, was only punishable as a misdemeanor.
    6. Because the conviction was, in other respects, illegal and contrary to the evidence.
    
      Mr. Boyce, for the appeal.
    On the fourth ground, in arrest of judgment, contended that the indictment, was defective, because it did not charge a scienter, that the prisoner knew that the negro woman, Hetty, was a slave.
    In support of this ground, he argued that such an averment would be necessary in a declaration. See 1 McMulJan’s Law Rep. 364, where such averment was held necessary in an action for harboring a slave. Cited further, 1 Chitty Pleading, 387 ; 2 lb. 645, in note, late edition. If this averment be necessary, in a declaration, much more so in an indictment, as criminal are more strict than civil pleadings. To prove the averment material, the counsel also cited the following authorities : 1 Chitty, on Criminal Law, 227; lb. 241, (note,) 264, 272 ; 2 lb. 167, 4.
    To sustain the fifth ground in arrest of judgment, the following considerations were urged : 1. All the Acts previous to 1754, providing against aiding a slave to run away, speak of an aiding in running away with intention to go beyond the Province ; the presumption, therefore is, that the Act of 1754, only provided against an aiding in running away with intention to go beyond the State. 2. All the Acts previous to 1754, on the subject of assistance to a slave in running away, were of two kinds only, assisting where the intention was to go beyond the Province, punished as a felony, and harboring, punished as a misdemeanor. As there was no specific Act against aiding a slave to run away within the State, it was argued, that it was embraced under the offence of harboring, consequently in 1754, harboring included assisting in running away within the State, and thus that Act had nothing to operate on, as it is not to be construed into a repeal of the harboring Acts pro tanto, except to an aiding where the running away was with intention to go beyond the Province. 3. The Act of 1751, 7 Stat. 424, recites that the punishment of death is too severe for one slave aiding another with intention to go beyond the Province, from which, it was contended, that in 1754, the intention was not to punish an aiding in running away, except when the intention was to run beyond the Province, inasmuch as the Aet of 1751 is in relation to slaves — that of 1754 relating to white men, and the history of legislation in this State is, that slaves are punished more severely than white men for like offences.
    On the 6th ground, penal statutes are to be strictly construed. Cited 9 Law Library, (Dwarris on Statutes, ) 68 and 70 ; 1 Russel on Crimes, 190.
    In support of the 7th ground, cited 2 Hawkins’ Pleas of the Crown, 314; 1 McMullan’s Rep. 479; 1 Bail. 144; 1 Chitty Crim. Law, 171 — 172; 2 Hawkins, 251.
    Mr. B. then argued generally, that from the facts stated in evidence, the prisoner was not guilty.
    
      Dawkins, Solicitor, contra.
    The indictment here, is similar to that used in the State vs. Blease, 1 McMullan, 472, which was 
      held sufficient. It is enough, in the words of the statute. See State vs. Cantrell, 2 Hill, 389.
    Every material allegation is made. Where a knowledge of circumstances, extrinsic of the act done, is essential to the of-fence, then the scienter is material.
    The presumption, from color was, that Hetty was a slave, and legal presumptions need not be proved.
    As to the 6th ground. The Act embraces all slaves, male or female. An Act must be construed so as to give it effect entirely according to its obvious meaning, as well as strictly.
   Curia, per

Evans, J.

There are seven grounds in arrest of judgment. The first has been so often decided, that I do not think it necessary to say any thing on it. The second seems to be identical with the sixth, and will be considered with that ground. I shall consider the others in their order.

By the Act of 1754, (7 Stat. 426,) it is made a capital felony to aid a slave in running away, and departing from his master’s service. By the Act of 1821, (7 Stat. 460,) it is a misdemeanor, punishable by fine and imprisonment, “to harbor, conceal, or entertain any runaway or fugitive slave.” If a later statute impose a milder punishment for the same offence, it is a repeal of the former; but in this case, the two statutes relate to distinct matters. The first punishes for aid and assistance rendered to the slave in the act of running away, and departing from the service of the master; the latter punishes for harboring, concealing or entertaining a slave already a runaway. The 4th ground alleges a defect in the indictment, in this particular, that it does not allege that the prisoner knew the negro woman, Hetty, was a slave. The general rule is, that when a statute creates a new offence, it is sufficient to charge the offence in the words of the statute. This has been done in this case. The indictment is in conformity with the precedents in common use, and is the same form used in Blease’s case, 1 McMul. 472. But where the statute declares that certain acts shall constitute an offence already existing at common law, then the offence shall be set out according to the usual forms. 3 McC. 533. When the Legislature, by the Act of 1821, made it a capital crime to murder a slave, this court decided that an indictment for that offence should contain such a description of the mode of perpetration as was necessary in charging a common law murder. It might have been sufficient evidence, to authorize the acquittal of the prisoner, that he supposed and believed Hetty to be a free person of color. His ignorance of the fact, that she was a slave, may be an excuse, but his knowledge of her condition, as a slave, is not of the essence of the crime, necessary to be alleged and proved by the prosecutor. A scimter is never necessary to be alleged, except when the crime is not complete, without some extrinsic circumstance within the prisoner’s knowledge, as in cases of aiding a prisoner to escape, uttering a forged note or bill, and cases of that description, where, without the scienter, the act is free from guilt. The legal condition of all persons of Hetty’s color, is slavery, and it cannot be necessary to allege a knowledge of what the law presumes.. These remarks apply very well to the 5th ground, which alleges a defect in the indictment, in not alleging the intention of the prisoner to aid the slave in going beyond “the limits of the State.” It is said the Acts passed prior to the Act of 1754, made this a part of the of-fence. I should rather conclude from the omission in the Act of 1754, that the Legislature intended to make the of-fence complete without it. It is very certain these words are not in the Act, and need not be alleged or proved.

The 7th ground alleges, as a defect in the indictment, that it does not “contain a distinct substantive averment, with time and place, that the slave, Hetty did runaway.” This ground has the support of the separate opinion of Judge Earle, in the case of the State vs. Blease, 1 McMul. 472. The form of the indictment is the same in this case, as that used in Blease’s case, which is there said to be according to the most approved precedents. The indictment must set out every fact which is necessary to make up the guilt of the prisoner, and if any of these facts are omitted, the judgment will be arrested. The verdict establishes that the prisoner did the acts charged in the indictment, but if these do not amount to a crime, no sentence can be pronounced upon him, because all the facts alleged may be true, and yet the prisoner has violated no law. There is no doubt that the running away of the slave is an essential part of the crime, and that it must be distinctly alleged and proved. In this case, the indictment alleges that the prisoner did aid a certain female slave named Het.ty, “the property, (fee. in running away and departing from the service,” (fee. by means whereof the owner, from thence hitherto, has been deprived of the use and benefit of the said slave,” The offence might have been stated in the way indicated by Judge Earle, but the fact would not, by such statement, have been more clearly and distinctly charged than it is. The running away of the slave and the aid afforded make up the offence. If these distinctly appear, it is sufficient. The idea that he aided her in running away, is inseparable from the idea that she did run away. Unless she did runaway, how could he aid her in doing so?

• I come now to the consideration of the 6th ground, which alleges, that the Act of 1754, so far as it refers to aiding a slave in running away, is restricted exclusively, by its very terms, to aiding a male slave. The words of the Act are, “all and every person or persons who shall inveigle, steal, and carry away any negro or any slave or slaves, or shall hire, aid or counsel any person or persons to inveigle, steal or carry away, as aforesaid, any such slave, so as the owner or employer of such slave or slaves, shall be deprived of the use and benefit of such slave or slaves, or shall aid any such slave in running away, or departing from his master, or employer’s service.” The argument is, that his master necessarily restricts the offence to aiding a male slave, because if a female was included in the Act, the words would be her master, or his or her master. That such was not the intention, I think, is very clear. The words in the first part of the Act, are “shall inveigle, steal, or carry away, any negro or other slave.” This is, certainly, comprehensive enough to include both male and female. In that part of the Act, which creates the offence of aiding a slave to run away, the words are “any such slave,” manifestly referring to such slaves as are mentioned above, to wit, any negro or other slave, without regard to sex. But it is said, that penal statutes are to be construed strictly, and nothing is to be included in them by intendment. There is no doubt this is the general rule, but it is also a rule that the courts are not to narrow the construction so that offenders may-escape. “We are to look to the words in the first instance,” said Buller, J. (1 Term R. 96,) “and where they are plain, we are to decide on them ; if they are doubtful, then we are to have recourse to the subject matter.” And in a late work, Dwarris, on Statutes, 79, Law Library, 9 vol. it is said, “statutes, though penal, have been taken by intendment, to the end that they should not be illusory, but should take effect according to the express intendment of the makers of the Act. Thus, by the statute 25 Ed. 3, the killing of a master, is adjudged treason, and it extends by construction to the mistress. The statute 3 Henry 7, c. 1, is, “that the wife or heir of him .so slain, shall have the appeal ; the heir of a tooman murdered, shall have the appeal for apices juris non sunt jura.”

These authorities, it seems to me, are conclusive of the question.

On the motion for a new trial, I have but few remarks to make. To go through all the facts, would be an unprofitable consumption of time. In criminal cases, on account of their great importance, both to the country and the accused, the court more readily inclines to grant a new trial, than in civil cases. But upon a review of all the facts, we cannot say that the evidence did not authorize the verdict. The motion in arrest of judgment, is dismissed on all the grounds, and the application for a new trial is refused.

O’Neall, Butler and Wardlaw, JJ. concurred.  