
    State v. M’Dowell and Gray.
    From Buncombe.
    To support an indictment for taking’ away property, it must be a violent taking from the actual possession of the owner at the time.
    Indictment for breaking into the possession of one Sarah Somers, and taking away her slave. ^ The fact was, that the slave was not in the actual possession of Sarah at the time of the taking, but was in the field of another person, to which she had been sent with James Somers, a brother of Sarah. M’Dowell, after some conversation with James and the slave, (who were children,) seized the slave, and placed her on the horse of Gray, and Gray carried her off. James offered such resistance as he could to the taking. The Court instructed the Jury, that Sarah Somers was, under the circumstances disclosed, in possession of the slave ; that the resistance of James, her brother, was her resistance; and that the taking was with force and a strong hand. The Defendants were found guilty. A new trial was refused them, and from the sentence pronounced they appealed.
   Tatior, Chief-Justice,

delivered the opinion of the Court: •,

The indictment charges, that the Defendant broke in and upon the possession of Sarah Somers, and took away her slave. The truth of the case was, that the slave, under the immediate control, and in the possession of James Somers, was five hundred yards distant from Sarah, and in another’s field. Though for all civil purposes, and to protect the right of Sarah, this possession of James’s would be considered as hers, yet the principle, on which such construction would be made, does not apply to indictment, in which there is no latitude of intention, to include any thing more than is charged ; the charge must be explicit enough to support itself.”—(2 Burr. 1127.)

To sustain this charge, by such proof as was given of the possession, would be to convert an action of trespass into an indictment. If the latter will lie for taking away the slave, it must be for a violent taking from the actual possession of the person at the time. The injury done to Sarah, in this case, consisted in the loss of her property, which may be redressed by a civil action. But the injury done to the public, if any, consisted in the violence and outrage with which James Somers’s possession was invaded. A new trial is consequently awarded.  