
    THE STATE vs. MOSES DEAN.
    where there was a conspiracy to commit an offence, it is not competent on the trial of one of the conspirators, to give in evidence the declarations of another conspirator, made after the offence had been committed 5 because they were not made in furtherance of the common design.
    The case of State v George, 1 Ire. 329, cited and approved.
    Appeal from the Superior Court of Law of Guilford County, at the Fall Term, 1851, his Honor Judge Ellis presiding.
    This was an indictment under the statute for stealing a slave. The three first counts in the bill charged, that the. slave was the property of one Phillip G. Smith, and the fourth the property of one James White and James Brown. The defendant pleaded not guilty, and upon the trial at the present term of the Court, the solicitor called one Phillip G. Smith, the alleged owner of the slave, as a witness in behalf of the State, who testified that the slave Lewis ran away from his plantation in Anson county, in the month of October, 1850, and was not seen by him until he was taken out of jail in Tazewell county, Virginia, in May, 1851: that the negro belonged to him, and was brought back to this State.
    James White, a witness for the State, swore that on the first of January last, he and one James Brown arrested the slave Lewis, in Guilford county, and were making arrangements to carry him to jail in Greensboro’, as a runaway slave, when the prisoner passed by the house, where they were, with his wagon. He asked some question of the slave, and had a conversation with him and Brown. The latter stated to the prisoner that they had no vehicle to carry the negro to jail in, and proposed to him to carry him in his wagon. After some further conversation, the prisoner agreed to do so for the sum of one dollar and fifty cents, provided the witness and Brown would meet him on the road to Greensboro’ at the house of one Bowman, while he, the prisoner, should go by his residence, and discharge the load which he then had in his wagon. After this, the witness and Brown proceeded with the slave to the house of Bowman, and soon thereafter the prisoner drove up with his wagon, and went a hundred yards beyond the house before he stopped : that the witness carried the negro out, and the four proceeded on their way in the direction of Greensboro’. No one at Bowman’s saw the prisoner, it then being dark, and his wagon was stopped beyond the house. About a mile from the house of one Pegg on the road, the prisoner made a proposition to turn back with the slave, and keep him until-a reward should be offered, and also said his horse was worried, and the weather very cold. The witness and Brown opposed this proposition. The prisoner proposed to stop at Pegg’s as they passed, to get some liquor. As they approached the house, he sent the witness and Brown in with a ten dollar bill, which he gave them to buy liquor, and he drove on about seventy-five yards beyond the house with the wagon, before he stopped. It was still dark, and the witness and Brown bought the liquor and followed on after the prisoner. When they overtook him in the road, and they all drank together, the prisoner again complained of the cold and said his horse was too much fatigued to proceed. He also proposed to take the negro and keep him for a few days in a vacant house of his, in order to give time for a reward to be offered : said he would take the papers and would see when the reward was oflered, and would then proceed to jail with him : that by waiting a while they might secure the reward, and he also said, it would not do to let any one see the slave in his possession, as it was against the law. The witness and Brown objected to this course at first, but subsequently assented. It was agreed, that the prisoner should keep the slave, until the weather changed and a reward should be offered. They all ihen went back to a vacant house, about a quarter of a mile from the residence of the prisoner, where they remained during the night with the slave. The next morning the witness and Brown returned to their homes, leaving the slave in the old house with the prisoner. On Saturday following, the witness returned and asked the prisoner if he had carried the negro to jail. He replied that he had not: that no one knew where the slave was except himself and another: that he could go to him then, and expected to do so again, and would shoot any one whom he should discover watching him. He said they could only have gotten five dollai's by carrying the negro to jail. A few days after this, the witness again saw the prisoner, who said that one Abram Weaver had taken the negro off, where no one could get him. Subsequently, the witness, Brown, and the prisoner were arrested under a charge of stealing the slave, and while in the jail together at Greensboro’, the two first told the prisoner that if he had taken the negro on to jail as agreed upon, they would not have been where they then were. To which he replied by requesting them to stick to what they had said, and should they all be convicted, he would come out and exculpate the witness and Brown, and take all upon himself.
    Upon cross examination, the witness said that he had heretofore made a different statement in his petition for a habeas corpus, and to various other persons ; that on the night of the first of January, as they returned, he told Brown that the slave had escaped, as they were carrying him to jail. This statement, he said, was made to several persons in pursuance of an understanding with the prisoner, when they turned back with the slave. The witness was told that he would be released and made a witness against the prisoner, if he would come out and tell, all about the matter.
    James Brown was next called by the State, who gave the same account of the arrest of the slave, as the witness White, together with the contract with the prisoner to carry him to jail, their progress on the road to Greensboro, and turning back at the instance of the prisoner, with the other incidents spoken of by the witness. He saw the prisoner a few days after, and threatened to make the cir. cnmstances connected with the slave public. The prisoner said, if he did, that the witness and White would be punished, as they, alone, had been seen with the slave. He also said, that no one knew where the slave wtts, except himself and another. After this time, he said that one Abram Weaver had come and taken the slave off with him.
    Other evidence was given, tending to show a conspiracy between Weaver and the prisoner.
    The counsel for the ¡State proposed to give in evidence the declarations of Weaver to a witness, as to the manner of his getting the negro from the prisoner, and carrying him to Virginia at the request, and as the agent, of the prisoner. These declarations were objected to by the prisoner’s counsel, first, upon the ground that no conspiracy had been shown between Weaver and the prisoner; and secondly, because in no event would the declarations after the transaction, in the absence of the prisoner, and merely reciting the occurrences, be admissible against the prisoner. The Court was of opinion, that the acts and declarations of Weaver were admissible, as confirmatory ot the witnesses, White and Brown, so far as they tended to prove a conspiracy between Weaver and the prisoner. And thereupon, the witness swore, that Weaver told him, that he had gotten the negro from the prisoner, and taken him over to Virginia as his agent.
    Mr. Hamlet, for the State, swore to the same purport.
    The Court charged the Jury, among other things, that if the prisoner received the negro from White and Brown, under the pretence of carrying him to jail, but with the intention, at the time, of stealing him ; and in this manner got possession of the slave, and carried him off, he would be guilty, as charged in the fourth count in the bill, for taking from White and Brown, provided they should be of opinion that they had arrested him as a runaway slave, and were in the act of carrying him to jail, in good faith ;— that such a possession would constitute a sufficient property in White and Brown to the slave, to sustain the charges in the fourth count in the bill; that such a property in them was not inconsistent with a general property in Smith, at the same time ; That, if they all had the negro in possession, with the honest intention of carrying him to jail, and concluded to turn back, and keep him till a reward should be, offered, they would thereby lose the control, which the law gave them over the slave as a l-unaway, so soon as they started back with this intention; and the possession would, at once, rest exclusively in Smith, the general owner, and a subsequent taking from the old house would be a taking from Smith, should they believe that he was, really, the owner. The prisoner’s counsel moved the Court to instruct the Jury, that, when White and Brown took up the slave, as a runaway, the act was lawful, and they had a special property in him, to the extent of the reward given bylaw ; and, if they committed him to the custody of the prisoner for safe keeping, until the weather should get better, the carrying him away by the prisoner, was not a larceny, but simply a breach of trust, as no larceny could be committed without a trespass.
    The Court expressed the opinion, that this would be the law under the supposed state of facts, but that the evidence was, that the object, in keeping the slave away from jail, was to wait until a reward should be offered, in addition to the reason concerning the weather, and that this would be such a breach of trust, as would vest the property in the general owner. The Jury returned a verdict of guilty, on the fourth count in the bill, and not guilty on the three firsts The prisoner’s counsel moved for a new trial, first, because the evidence would not sustain the verdict; second and third, for misdirection, and admission of improper testimony.. The rule was allowed, and subsequently discharged, — the Court being of opinion that the declarations of Weaver tended to show a conspiracy between him and the prisoner, to take the negro from the State and sell him. A conspiracy being the assent of two minds, or more, to do an unlawful act together, the admission of each one, separately, to that effect, would be evidence of the combination' of all; and such a conspiracy, when established, would tend to corroborate the two witnesses, White and Brown, and to characterise the previous acts of the prisoner. — ■ That though they had been admitted but for the former purpose, it was a restriction favorable to the prisoner. Judgment was then rendered against the prisoner, and he appealed. There was a verdict of guilty.
    
      Attorney General, for the State.
    
      John H. Bryan, for the prisoner.
    The prisoner was convicted under the fourth count of the indictment, charging the property to be in Brown and White, who apprehended the runaway. They have not that special property in the slave, which the law contemplates as the subject of larceny. They were, merely, in the discharge of a police duty, in apprehending the slave; their possession was not derived from the absolute owner, but they had a naked authority, conferred by the law, for the purpose of carrying the negro to jail. State v Williams, 8 Ired. 147. But if they were bailees, with a special property, they, certainly, are not the owners contemplated by the Statute. Their interest, as seems to have been admitted, was of the value of three dollars, — the sum allowed by law for the apprehension of the slave. Was this interest intended to be protected by the penalty of death? We cannot suppose so, without ascribing to the Legislature a confusion of all ideas of policy and humanity. The preamble to the old Act speaks of the practice of stealing and carrying away slaves and free negroes. This certainly shows that the Legislature did not have in view' such an offence as that described in the fourth count.
    There must be a taking inuito domino. Here, if Brown and White are to be regarded as the temporary owners, there was no taking against their consent, — for they agreed with the prisoner, that he should keep the slave, until a reward should be offered, and thus conspired with him to defraud both the law and the absolute owner; and in this, the prisoner acted as their agent, and he defrauded them as well as the absolute owner. How can they be heard to complain in a Court of justice, that they have been deprived of the fruits of this iniquitous scheme ? and their rights are now alone in question, as the conviction was only under the 4th count, laying the property in them.
    As to the admissibility of the delarations of Weaver, it must not only be established that he was the agent of Deans, but he must have been acting as agent at the time of the declarations made ; Fairlie v Hastings, 10 Yes. 126, Garth 
      v Howard, 28 E. C. L. R. 275, 1 Green!. Ev. s. 113. It is of the more importance that the declarations should be thus restricted, as the principal is bound by the declarations of an agent while transacting his business, although the agent may be mistaken. The doctrine is the same as to conspirators. The facts stated in evidence exclude the idea of any conspiracy between Weaver and the prisoner, to effect the larceny ot the slave, which is. the charge in the indictment — Weaver does not appear until that act is accomplished — he could only be concerned in receiving the negro, &c.
    
      Mendenhall and Mor ¿head appeared on the same side.
   Pearson, J.

There was evidence tending to show, that the prisoner had stolen the slave, and had procured one Weaver to take hi.n to the State of Virginia, and sell him, in 1851. The slave was a runaway, and had been arrested by one While and one Brown, and they were the witnesses mainly relied on by the State, to make out the case. A witness called by the State swore, that, in April, 1851, he •went to Virginia in search of the slave, — found him in the possession of one Lowder, to whom he had been sold by Weaver, — committed the slave to jail, and caused Weaver to be arrested on a charge of negro-stealing. The State then offered to prove by this witness, that, after Ms arrest, Weaver told the witness that he had got the slave from the prisoner, and had taken him over to Virginia, and sold him, as his agent. This evidence was objected to, on the part of the prisoner, “first, on the ground, that no conspiracy between the prisoner and Weaver had been shown ; second, because, in no event, would the declarations of Weaver, in the absence of the prisoner, and after the transaction, and merely reciting the occurrences, be admissible as evidence against the prisoner. The Court was of opinion, “that the declarations of Weaver were admissible, as confirmatory of the witnesses White and Brown, so far as they tended to prove a conspiracy between Weaver and the prisoner.” — • The evidence was admitted, and for this the prisoner excepts.

The exception is well founded ; and it is unnecessary to notice the other points, or to state the case any further.

Admit it to have been proven, that there was a conspiracy between the prisoner and Weaver, by which it was agreed that the one was to steal, and the other was to take the slave to Virginia and sell him. The evidence of such a conspiracy was very slight, and his Honor seems to have considered it insufficient, for he puts the admissibility of the evidence on the ground, that it was confirmatory of the witnesses, so far as they tended to provea conspiracy. But, admit the conspiracy to have been proven: There is an actual impossibility that these declarations could have been used, in furtherance of the common design, for they were made after the matter was over, and after Weaver was arrested, when it served his purpose to put the blame on the prisoner; and he was directly interested in making a statement, according to which ho, himself, could not be convicted under the Statute. But apart from this peculiar circumstance, it is sufficient to say, the declarations were not made in furtherance of the common design, and were, for that reason, inadmissible. This very point is decided, State v George, 7 Ired. 321, and the decision is so well sustained by authority, and upon principle, as not to call for another word.

Per Curiam. Oidered to be certified according!}'.  