
    
      The State vs. Gabriel South.
    
    Under the Act of 1843, malting it an indictable offence for a master to conceal or convey away his slave, accused, of a capital felony, so that he cannot be brought to trial and condign punishment, the slave is accused, within the meaning of the Act, when complaint is made to a magistrate in order that a warrant should be issued.
    
      
      Semble, that where no such accusation is made, a master is liable, if, knowing that his slave has committed a capital felony, he co'nceals or carries him out of the State with the intent to evade justice.
    A master who carries off his slave, is liable under the Act, though the slave is after-wards brought back, tried and punished.
    
      Before Wardlaw, J. at Laurens, Spring Term, 1852.
    The report of his Honor, the presiding Judge, is as follows.
    “ The defendant was indicted, under an Act of 1843, (11 Stat. 257,) for conveying away his slave, Nathan, who was accused of a capital crime, so that he could not be brought to trial and condign punishment.
    “ The evidence shewed, that, in 1851, February 22, a crime was committed by a negro, whose name was unknown to the person injured. A detail of the circumstances, and a description of the offender were that day given, by that person, to a magistrate. Nathan, a slave of defendant’s, was suspected to be the offender. About 25th February, Nathan was, by the defendant, conveyed secretly out of the State: 26th, the magistrate granted a warrant against Nathan: after ineffectual search, a reward was offered for him, and this prosecution was commenced against the master. April 4th, Nathan was brought back, through the procurement of the defendant, by a person who got the reward. Nathan was afterwards tried. On the first trial acquitted of the felony with which he was charged, and punished for a misdemeanor of which he was convicted ; afterwards tried for another felony, involved in the same transaction out of which the misdemeanor had arisen — convicted, and sentenced to capital punishment.
    “ Various legal grounds were taken in the defence, all depending upon the construction of the Act under which the defendant was indicted.
    “ In interpreting the Act of 1843,1 made reference to the Act of 1740, and several previous Acts concerning the removal and concealment of slaves accused of crime: (7 Stat. 403, § 20, 1740; 388, § 12, 1735 ; 375, § 13, 1722; 356, § 11, 1712).
    
      
      “ I held that an intent to evade criminal justice was an essential ingredient in the offence punished by the Act of 1843 : that a slave was accused when a complaint against him was made to a magistrate, or information of an oilence imputed to him was received by a magistrate, (the first step in a criminal proceeding against a slave, according to the 9th section of the Act of 1740, 7 Sfcat. 400; which has been, in part, re-enacted or amended by the 28th section of an Act of 1839, 11 Stat. 22); that if a slave was, with intention to evade justice, conveyed out of the State, and was accused, it was immaterial whether the accusation preceded or followed the conveying away, and it was immaterial whether the slave died abroad, or was brought again into the State so that he might be tried; immaterial whether the slave was or was not guilty of the capital crime of which he was accused ; whether he was, after being once criminally conveyed away, tried or not, and whether, upon trial, he was acquitted or convicted; that the statutory offence, punished by the Act of 1843, was complete when legal process against a slave accused of a capital crime was rendered ineffectual by the master’s having, with intent to evade justice, concealed or conveyed away the slave, so that he could not then be arrested and dealt with as he would otherwise have been, in the course of being brought to trial and to punishment, if punishment was found to be deserved.
    “ The defendant was found guilty.”
    The defendant appealed, and now moved for a new trial, on the tollowing grounds.
    1. Because, at the time the negro was carried from the State, there was no legal charge of crime made against him, and by a proper construction of the Act of the Legislature, the master could not be convicted, unless the slave had been legally charged by process, at the time he was carried away.
    2. Because the slave was arrested, tried, convicted and punished for the crimes charged against him.
    3. Because the Act under which the defendant was indicted, only applies to cases where the slave is so concealed that he cannot, and is not brought to justice.
    4. Because his Honor, the presiding Judge, erred in charging the jury that “ the defendant was liable for the removal of his negro, although he was not charged with the offence until after the removal.”
    5. Because his Honor also erred in instructing the jury, “ if the negro was not surrendered when the warrant was issued, the defendant’s liability was fixed, and the production of the slave afterwards would not relieve him.”
    6. Because his Honor charged the Jury that it made no difference whether the slave had committed any offence or not, if he was charged with crime that was sufficient, even though that charge consisted of a mere verbal allegation of guilt.
    7. Because the verdict was against the fair construction of the law in the case.
    
      Irby & Henderson, for the motion.
    
      Reed, solicitor, contra.
   The opinion of the Court was delivered by

Frost, J.

The Act of 1843 provides that, “in case the master, or other person having charge or government of any slave, who shall be accused of any capital crime, shall conceal or convey away any such slave, so that he cannot be brought to trial and condign punishment,” on conviction, he shall forfeit one thousand dollars, and be imprisoned at the discretion of the Court.

The offence, defined by the statute, if the person accused of the capital felony were a free man, is that of an accessory after the fact; which is a high misdemeanor. But a slave is the passive subject of his master’s will, and is in the legal custody of his master. If he is secreted or carried away, that is not his own act, but the act of his master. In this view the offence, defined by the Act, is analogous to the rescue of a felon, or aiding his escape, which, by the common law, is a felony. Compared with the enormity of the offence, the pecuniary penalty is light; especially when it is considered that, where he incurs the penalty, the master may have indemnified himself, in part or entirely, by the sale of his slave. The offence is of mischievous tendency and avarice or indiscreet partiality present great temptations to its commission.

The design of the Act to suppress the offence should not be defeated by a narrow and cavilling construction.

The first ground of appeal presents for enquiry, what is meant by the word accused.” Though frequently used in that sense, it does not necessarily import the charge of a crime by judicial procedure. In its popular sense, it is used to express a charge or imputation merely. In this sense, one may be accused of that which is no legal offence; as if he is charged with immoral or disgraceful conduct or official delinquency. It certainly is not synonimous with arrested under criminal process. If that construction were given to the Act, it could serve no useful purpose. The vigilance and activity of the master would outstrip the tardy process of the law. Popular sense will support the construction, that a slave is “accused,” when the commission of a capital felony is charged or imputed to him. The Act was so construed in the case of the State vs. McAliley, (MS dec. Col. May, 1840,) where it was held, that after the Act of 1740, (of which the Act of 1843 is a copy, excepting the penalties) a master could not be charged as an accessory after the fact, for conveying away his slave accused of a capital felony ; but that the indictment should be framed on the Act. An accessory after the fact, is one who, knowing a felony to have been committed, aids the offender to escape from justice. So that case supports the instruction of the circuit Judge to the jury, that if the master, knowing that his slave has committed a capital felony, conceals or carries him out of the State, with the intent to evade justice, that is within the intent and meaning of the Act. It is not, however, necessary in this case to rely on that construction, since it is clear that the defendant’s slave was “ accused” in the most technical sense of the term, when complaint' of the felony was made to a magistrate in order that a warrant should be issued.

By the second ground of appeal, it is denied that the Act is violated if the slave is afterwards arrested and tried. The Act was intended to prevent the hindrance of justice; and the offence is complete when, by the act and intention of the master, the slave is concealed and carried away so that he cannot be brought to trial and punishment in due course of law. The master cannot be exculpated because the slave is afterwards tried and punished. If that were so, then the criminality of the master would depend, not on his own act and intention, but on the acts of others. If the slave is brought back against the efforts of his master to prevent it, how can that exonerate him ? Even if the master delivers up the slave for trial, that cannot cancel his offence in having carried away or concealed his slave from arrest in the due course of law. An accessory cannot claim an acquittal, because, after he had given him aid to escape, the felon was arrested. Nor can the accessory, by afterwards aiding to arrest the felon, compensate for his former aiding of the felon to escape. A thief is not acquitted of his larceny because the stolen goods have been re-taken, or even restored by him to the oryner. The Act of 1754, makes it a capital crime to inveigle, steal or carry away any slave so that the master is deprived of his services. The recovery or restoration of- the slaves to the service of the master, is no defence to the charge of having inveigled, stolen and carried them away.

The motion is dismissed.

Evans, Wardlaw, Withers and Whitner, JJ. concurred.

O’Neall, J.

I dissent. For I hold that if the slave was returned, tried and convicted, before the indictment was found by the grand jury, there cannot be a conviction of the defendant.

Motion dismissed.  