
    THE STATE vs. HAWKINS.
    1. Ill larceny, the criminal intention constitutes the offence, and . is the only criterion by which to distinguish a larceny from a trespass.
    2. To constitute larceny, it is not sufficient that the goods be taken for the purpose of destroying them ; as, if one take the-horse of another, for the purpose of destroying him, to injure his neighbor — and should destroy him — this would be malicious mischief, but not- larceny.
    3. Where a defendant' assisted in secreting a slave, to the end that she might escape from her master, and obtain her freedom, but there was no intention to convert the property to the . use of the defendant — an indictment for larceny could not be sustained.
    Error to .Mobile Circuit court.
    Indictment for stealing a slave, tried by Judge Pickens. This was an indictment found against the prisoner, in the Circuit court of Mobile county, for stealing a slave.
    There was a verdict against the prisoner, on the plea of not guilty,, and judgment pronounced against him.
    On the trial of the cause, a bill of exceptions was taken, which was as follows: “Be it remembered, that on the trial of this cause, it was proven on behalf of the State, that the defendant had taken the negro-slave, Jane, out of the possession of her master, and had attempted to place her on hoard a certain vessel called the brig Martha, then just about sailing for a northern port, with a view of enabling said slave Jane to secure her freedom, by going to a free, or non-slaveholding State.
    It was further proven in behalf of the State, that ha-viüg failed to fe: 1 ;h : ¡;S0 brig hu'.rtba, (which had dropped c’c.v/11 V. -¡ 0“ account oí the darkness of ¿lie,night, and the do nelly oí. the fog,- — the defendant concealed in the fcrccx.tio of the schooner Eclipse, (on which he was coc) the cari clave Jane, for several days, for the purpose of crablirg her to make her escape to a free, or o on-slaw d!or'h-p Linio.
    The judge dwrgcd the jury. Cat if the evidence satisfied them that the irking end currying away, was with the motive of taring the dr.ro to c free Ctcte, that she might ce joy freedom, suck motive was suiTicicnt to constitute larceny.
    The"question cf law coining out of the evidence, and the charge of the court, was by the judge referred to this court as novel and dihlcmt.
    
      Aiiornay Genera;. for the Girds.
   QRI/IOGD. 7.-

Ti.,: judgment, in in’s case, is founded on a statute of thin Otate, tobe found in /Jken’s Digest, 103, sec. 19. “If any person or persons, shall steal any negro or mulatto slave whatsoever, out of, or from the possession of the owner cr overseer of such slave, the person or persons so offending, arc hereby declared to be •felons, and chalí suffer death/’

The single question presented by the record, is,, whether the facts given in evidence on the trial in the court below, and from -which, under the instruction of the court, the jury found the prisoner guilty, v/eie sufficient to warrant his conviction on this indictment, for stealing the slave therein mentioned.

The evidence eslablAh'-s the fací hayond a'!! doubt^ that the'prisoner Aki ;:R kkw;J io convert tito negro to his own use, but tint the taking wav; to enable her to make her escape to ;i Aug Cíate: upen v,n Ah the court charged the jury, that 1Í the menea of ti e prisoner, in taking the clave, we.:: to or:a:ha he; to escape to a free State, that she might enjoy freedom, such motive was sufficient to constitute I.an.my.

We will proceed to cxnfine whether a larceny can-he committed without the furcr.di; the intention to convert the subject of the larceny to the use o-f the taker.

Biacksione defines larceny to lee t’no uf¿c¡:t<n:s taking and carrying away the goods of another'’ — (4th Book, 230.) This iahing'aad carrying away, he says, must also be /e'enkw, LLh.t is, dene cn::s¿:rt /¿'retid!; or, as the civil law espy exes ii, Aver; ee::au. It lo taco thus defined by Lord Coke, in ids Institutes, ana by Hawkins, in his Pleas of the Crown—(1 Hawk. 93.)

This definition has been objected to, as not being sufficiently certain, — the wordykAnAw itself, requiring a definition; and Ameboid submits the following : “Larceny, as far as respects the Intent with which It is committed, (and the intent ’.'.ere, Is a material part of the of-fence,) may perhaps bo correctly defined thus: whei*e a man knowingly lakes and carries away tlio goods of another, without any claim or pretence of right, with intent wholly to deprive the owner of them, and to appropriate or convert them to bis own use.” And'Chief Justice Eyre, iu-Bears'cess,, defined tiro offence thus: “ The wrongful taking of goods, with intent to spoil the owner of them. Inert rarsc.'' »

It is apparent from the definition, and is so expressly laid down in the books, that the criminal intention constitutes the offence, and is the only criterion by which to distinguish a larceny from a trespass. According to this definition, to constitute the offence, it is not sufficient that the goods be taken for the purpose of destruction, as, if one should take the horse of another, for the purpose of destroying him, to injure his neighbor, and should destroy him, such an offence would be punishable as malicious mischief, but it would want one of the essential ingredients of larceny, the lucri causa, — the intention to profit by the act — by the conversion of the property.

This is the ancient doctrine of the common law, but it has been recently called in question by several decisions made by the English Judges, which will be now noticed, as it was probably under their influence that the decision of the court below was made.

In the case of the King vs. Cabbage, (Russel & Ryland, 292,) a prisoner, to screen his accomplice, who was indicted for horse-stealing, broke into tbe prosecutor’s stable, and took away the horse, which he backed into a coal pit, and killed; and it was objected at the trial, that this was not larceny, because the taking was not with an intention to convert the horse- to the úse of the taker, animus furandi et lucri causa; seven of the judges held that it was larceny, and six of that majority were of opinion, that to constitute larceny, it was not essential that the taking should be lucri causa] if it he fraudulent, and with intent wholly to deprive the owner of his property. _ But some of this majority thought that the object of the prisoner might he deemed abenefit, and (he faking, lucri. causa.

Also, in the ease of the King vs. Morfet and others, "where the prisoner’s servants in husbandly, opened the granary of their master, by means of a false key, and took thereout two bushels of bc-ans to give to their master’s horses, in addition to the quantity usually allowed; this was held larceny, by a majorily of the judges; hut it was alleged by some, of the judges, that the additional, quantity of beans would diminish the work of the men who had to look after the horses, and therefore, the lucri causa, to give themselves ease, was an ingredient of the offence.

It appears to us, that these cases cannot be considered authority in this country. The shadowy, and almost imaginary distinctions upon which they rest, are at war with that precisión and certainty which is the boast of the criminal law of England. It is also to be remarked, that they are decisions made by a bare majority of the judges; and of that majority, a considerable portion, for reasons, it is true, which ¿o'not seem entitled to much weight, held that the lucri causa was present in those cases.

In the case at bar, it is very clear, that the intention was apparent to do the owner of the slave an injury, by depriving-him of his property ; but we cannot see how the prisoner was himself tobe beueñtíed, by aiding the slave to obtain her freedom. There being, therefore, no intention to convcrfthc slave to his own use, — he cannot, from the view we take of the case, be found guilty of larceny.

We are grcatly’strengthoned in the view we have taken of this case, from the legislation of the slaveholding States on this subject. In the States of Kentucky, South Carolina, North Carolina, and, as we are informed, in other slaveholding States, the crime of taking a slave, without the consent of the owner, with intention to convey him beyond the limits of the State, is specially provided for, in addition to penal enactments for stealing a slave. We are, therefore, of opinion, that the indictment, in this case, for stealing a slave, cannot be supported, on the evidence contained in the bill of exceptions.

The judgment of the court below, is therefore reversed; but the prisoner is to remain in custody, until the next term of the Circuit court, to be held for the county of Mobile, unless delivered therefrom, by due course of law, to enable the solicitor for that judicial circuit, to prefer an indictment against him for harboring or concealing the slave Jane, in this indictment mentioned, or for a conspiracy to deprive the owner of the said slave of his property.  