
    
      The State vs. Minor McCoy.
    
    1. Where, on the trial of an indictment for negro stealing, a witness in the defence was asked, if he had not seen in the possession of the prisoner, after he was committed to jail, a power of attorney purporting to have been executed by the person whose agent the prisoner had represented himself to be in selling the slaves Alleged to have been stolen, which authorized the sale, no attempt being made to account for the non-production of the paper, the answer was not permitted to be given. 1
    2. Before a paper can be shewn, or spoken of, it must be proved. If it be lost, the loss must be proved, then the legal existence by proof of its execution, and then proof of its contents.
    3. Where it was charged in an indictment under the Act of 1754, 1st. That the prisoner inveigled, stole and carried away certain slaves; and 2nd. That he aided another in inveigling, stealing and carrying away the same slaves, it was held that the offence as charged might be established by any proof which satisfied the jury either that the prisoner stole the negroes, or aided another in stealing them, in the district where the crime was alleged to have been committed.
    
      4. The offence contemplated by the Act of 1754, was that of stealing a negro.
    5. The words used in the first clause of the Act, “to inveigle, steal and carry awayand those in the second, “to hire, aid, or counsel any person to inveigle, steal or carry away,” were intended to make the stealing of a negro, no matter how effected, death to the principal and the accessary.
    6. The.only difference between the stealing of a slave and that of a bolt of linen, is that a slave is a human being capable of assent, and hence, therefore, inveigling is a means by which the larceny is effected. Although the offence contemplated by the Act of 1754 may be effected by inveigling, or carrying away by force, it does not affect the construction that the offence meant, was stealing a slave; and until the inveigling or carrying away ends in the “'f¿Ionice cepit et asportavit,” the offence would not be made out.
    7. The State vs. Miles, 2 Nott and McCord, 1; State vs. Covington, 2 Bailey, 570; and State vs. LaCreux, 1 McMullan, 488; noticed and explained.
    
      Before O’Neall, J. Sumter, Spring Term, 1844.
    There were two counts in the indictment. The 1st. for inveigling, stealing and carrying away three slaves, Enoch, Jinney and Mary, the property of Willis J. Spann. The 2d. was for aiding Stephen McCoy in inveigling, stealing and carrying away the same negroes. The negroes went out of their owner’s possession, in Sumter district, on the night of the 13th of May, 1837. They were returned to his possession, by the party who went after them, (Samuel Young, Edward Anderson, John W. Anderson and James R. Spann,) in February, 1838. They found the negroes in Hellhole Swamp, Charleston district, at the plantation, and in the possession, of Charles G. McCoy, who proved that they were brought to him in August, 1837, by Stephen McCoy; the prisoner came from the 15th to the 20th of January, 1838, and sold the negroes to him for $1500. When he sold them; he represented himself as the agent of Benjamin Winn. The negro man was called, in the bill of sale executed by the prisoner, Tommy, and the women, Martha and Eliza. The bill of sale bore date 23d January, 1838.
    The prisoner lived at the Swimming Pens, Scapewhore Swamp, Sumter district, within four miles of the prosecutor Spann. The proof showed that he, the prisoner, knew the slave Enoch, as the property of Mr. Spann, who communicated to him the fact, that bis negroes had been stolen, after they left his (Spann’s) possession. The prisoner, immediately after the negroes were brought back to Sumter, left home, and was overhauled in Charleston district, between the 32 mile house and Strawberry Ferry. He was committed to jail, which he broke, and escaped. He was lately recaptured.
    In the course of the defence, the prisoner would have proved, byMaj. Wm. E. Richardson, that he, the prisoner, had, after he was committed to jail, in his possession, a bill of sale, purporting to be executed by Benjamin Winn. There was no attempt to account for the non-production of the paper. The Solicitor objected to the question, and the answer was not allowed to be given.
    The prisoner’s character was put in issue by himself, and he proved by ten witnesses, that up to this transaction, his character had been good, and above suspicion. The witnesses generally, however, lived several miles from the prisoner. His more immediate neighbors, five of whom were sworn, said his character, before this affair, had begun to be suspected. The grounds of this suspicion were asked for by the prisoner, and stated by the witnesses to be, retailing without a license, trading with negroes, and receiving one bag of cotton, stolen from Mr. F, L. Kennedy, deceased.
    The jury were instructed that the charge of inveigling, stealing and carrying away the negroes, would be established by any proof which satisfied them that the prisoner stole the negroes. That it was necessary they should be satisfied that the prisoner stole the negroes in Sumter district;, or aided Stephen McCoy, in Sumter district, in stealing them. They were referred to all the proof, and told that the sale in Charleston district of the negroes by the prisoner, the change of their names, his' knowledge that Enoch was the slave of the prosecutor, his flight, the breaking of the jail, and his escape therefrom, might satisfy them that the offence was committed in Sumter district, and if so, he ought to be convicted; otherwise, he should be acquitted.
    The jury found the prisoner guilty, but recommended him to mercy.
    
      The defendant appealed for a new trial, on the following grounds.
    First. Because his Honor instructed the jury to this effect:
    1. That under the charge in the indictment, that the defendant inveigled, stole and carried away the negroes, it was sufficient to prove that he stole them.
    2. That it was not necessary to prove the inveigling, though laid in the indictment.
    3. That the charge in the first count in the indictment was sustained by'proof that the defendant sold the negroes in the district of Charleston.
    . 4. That under the second count in the indictment, proof that Stephen McCoy stole the negroes in Sumter, and that defendant afterwards sold them in Charleston district, was sufficient for his conviction of the offence charged as committed in Sumter.
    Second. Because his Honor rejected the proof by Maj. Richardson, that he saw a power of attorney in the possession of the defendant, from Benjamin Winn to him, authorizing him to sell the slaves.
    Third. Because the evidence did not warrant the conviction of the defendant, inasmuch as there was no evidence that the defendant inveigled, stole and carried away the negroes, or aided or counselled others to do so.
    Fourth. Because the offence was committed in Charleston district, and not in Sumter, if committed at all.
    
      Moses and DeSaussure, for the motion.
    
      Caldwell, Solicitor, contra.
   Curia, per

O’Neall, J.

The second ground of appeal will be first considered. The argument here maintained is, that the existence of the paper was first to be shewn, before the loss could be proved, and that therefore the question was competent. This is, it is true, a very specious way of presenting the argument. But it is a mistake to suppose that such is the rule. Before a paper can be shewn, or spoken of, it must be proved. If it be lost, the loss must be proved, then the lega] existence, by proof of its execution, and then proof of it$ contents. This I suppose to be too were settled to require more than to be stated. But as it has been seriously argued to the contrary, I have looked into Mr. Starkie’s book on evidence for his understanding of the rule ; and in the second part, p. 354, he thus states it, “when sufficient evidence has been given of the loss of the deed, of which it seems the court is to judge, it must be shewn that the paper existed as a genuine instrument.” This is a sufficient answer to the 2d. ground. The first, third and fourth grounds, in reality present a single question, whether the jury were rightly instructed when they were told, that the charge of inveigling, stealing and carrying away the negroes, or of aiding Stephen McCoy in stealing and carrying them away, could be established by any proof which satisfied them that the prisoner stole the negroes, or aided Stephen McCoy in stealing them, in Sumter district. For if the instruction be right, it is not denied that the facts would sustain the conclusion of the jury. This question, I had supposed, had been put at rest, by the innumerable cases decided under the Act in the last ninety years ; but as it seems there still is some doubt about it, and especially so, since by the republication of the Acts in the Statutes at Large, it seems there is a difference, in a slight particular, in the Act of 1754, as thus published, and as it was published by the late Judge Grimke in his Public Laws, I have examined the original Act, and find the publication in the Stat. at Large to be correct. In 7 Stat. at Large 426, the Act is set out as follows, viz: “Whereas, by the laws of this province, negroes and other slaves are deemed to be chattels personal, and are in every respect as much the property of their owners, as apy other goods apd chattels are; and whereas, no punishment can be imflicted, by the laws now in force, upon persons inveigling, stealing and carrying away any such slaves from their lawful owners or employers, that is adequate to so great and growing an evil; and whereas, the inhabitants of this province are liable to and receive great injustice and damage by such unwarrantable and pernicious practices and wicked proceedings; therefore, to prevent and punish, as much as may be, such evil, we humbly pray your most sacred majesty, that it may be enacted, and be it enacted, by his Excellency James Glenn, Esq. Governor and Capt. General in and Over his majesty’s province of South Carolina, by and with the advice and consent of his majesty’s council, and the House of Assembly of the said province, and by the authority of the same, that from and immediately after the 24th day of June next, all and every person and persons, who shall inveigle, steal and carry away any negro or other slave or slaves, or shall hire, aid or council 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,” <fee.

It will be observed, that the preamble states, that for inveigling, stealing and carrying away, there was no adequate punishment, not that there was no punishment. When, by the Act of 1740, slaves were decreed to be chattels personal. Stealing them became like any other larceny of goods; this most usually would be grand larceny, and the then punishment, imprisonment and branding. This punishment was supposed to be inadequate, and owing to the facility of committing the offence, the Act of 1754 increased the punishment to death. Looking at it in this way, it is apparent that the offence contemplated by the Act, was that of stealing a negro. The construction of the words is, I think, the same. “To inveigle, steal and carry away,” are the words used in the first branch of the enacting clause; “to hire, aid or counsel any person to inveigle, steal or carry away,” are the words used in the 2d. clause. Can it be that different meanings were intended to be attached to the words used, from the use of the copulative conjunction in the first, and the disjunctive in the 2d. clause'? Clearly not. For if that was the case, the accessory might be condemned, when the principal would go clear. The words used in the first clause, as well as in the second, were intended to make the stealing of a negro? no matter how effected, death to the principal and the accessory. To inveigle, as is said by Judge Nott in Miles’s case, is to seduce, entice and decoy. This is merely persuasive ; and until consummated by the slave departing from his owner’s service, there is no offence ; when that occurs the defendant has inveigled, stole and carried him away. What is that but stealing a negro 1 'J he only difference between such stealing and that of a bolt of linen, is, a slave is a human being capable of assent, and hence, that therefore, inveigling is a means by which the larceny is effected.

In the State vs. Miles, 2 N. and McC. 1, Judge Nott supposed the publication of the Act in Public Law’s “to inveigle, steal or carry away,” was correct, and laid much stress on the fact, that the disjunctive, and not the conjunctive, conjunction, was used. But it is plain throughout his opinion, that he regarded the offence as consummated by any thing which would amount to stealing. Indeed the liteial import of his words would make one conclude that he intended to say, that if one inveigled or stole, or carried away a slave, it would be enough. But that clearly was not his meaning. He meant that whoever stole a negro, whether by persuasion or force, was guilty under the Act. He said, as I should say, “it was intended, therefore, literally, as it is expressed to embrace all who should inveigle, steal or carry away such property; that is the construction which has been uniformly given to the Act from the earliest recollection of the oldest member of this bench. Any other construction would render it entirely inoperative.” In Covington’s case, 2d. Bailey, 570, Judge Johnson, speaking of the Act as it was then understood to be from the Public Laws, said, “here, it will be observed, are two distinct offences, inveigling and stealing, differing, it is true, in the manner of perpetration, the one consisting of a moral, or rather immoral, influence over the mind of the slave, and thus subjecting his person to control; the other, of physical force, by which his person is brought into subjection. But in their consequences to the owner, the loss of service, they are identical; and the same circumstances which would constitute evidence of the loss of service in the one cáse, will also constitute it in the other.” It will be here observed, that the Judge supposes there may be two offences under the Act; but in point of fact, he intended to say there were two modes of stealing a negro, one by inveigling, and the other by carrying him away by force. That is, I think, true, and still it does not affect the construction for which I am contending. Indeed it strengthens it. It shews that the offence is stealing, and until inveigling or carrying away ends in the felonice cepit et asparlavit, the offence would not be made out. In the State vs. La Creux, 1 McMul. 488, it was objected, in the 2d. ground of appeal, against the indictment, that it alleged that the prisoner, “inveigled, stole and carried away the said slave,” which is repugnant and void. The argument in that case was, that the Act created three distinct offences, viz: 1st. to inveigle, 2d. to steal, and 3d. to carry away. But the court answered that “to inveigle so that the owner or employer be deprived of the use and benefit of a slave, is to steal and carry away; and although there may be cases of a stealing and carrying away, in which there is no inveigling, this does not render a charge, in which all are combined, repugnant and void. It only superadds another circumstance, which must be proved to make out the offence as laid.” That case unquestionably shewed that stealing was the offence, and that inveigling was only one of the means of perpetrating it. The concluding observation cited, was more than the case required, and is not exactly correct. It would be better to say, that in the usual cases of stealing a negro, the presumption is that the offence was brought to its consummation by inveigling; but if it appeared to be perpetrated by force, that there inveigling is a wholly immaterial circumstance, in both the statute and the charge, and need not be proved. The motion is dismissed.

Richardson, Evans, Butler and Wardlaw, JJ. concurred.  