Russell v. Taylor

• Citation: 4 Mo. 550
• Parties: RUSSELL v. TAYLOR.
• Decision Date: 30 June 1837
• Court: United States State Supreme Court of Missouri

4 Mo. 550

RUSSELL

v.TAYLOR.

Supreme Court of Missouri.

June Term, 1837.

GEYER, for Plaintiff in Error. 1st. Because the facts established a cause of action under the statute; Rev. Code 1825, 747; and no previous conviction was necessary; Mellen v. Conway, 2 Mo. R. 213. 2nd. Independent of the statute, the plaintiff was entitled to recover for carrying away, and harboring, his slave. 3rd. The instruction was an invasion of the right of the jury to determine the facts. See the cases of Cunningham v. Sublette, 4 Mo. R. 220; Speed v. Herrin, 4 Mo. R. 356.

DARBY and HAMILTON, for Defendant in Error. 1st. The statute is intended to apply to offenses committed by ferrymen, as a class, and to other persons in their service, acting in that capacity. 2nd. The remedy given by statute, though cumulative, is dependent; and however it may conflict with the general rules of pleading and evidence, the statute contemplates a previous conviction to be alleged and proven by plaintiff. 3rd. There was no evidence of the slave being taken across the Mississippi river into the State of Illinois, or elsewhere, beyond the said river, as alleged in the plaintiff's declaration; and 4th. At most there was a mere inference of an intention so to do, by engaging the slave as a hand on board the boat; but, in acts mala in se, the intent governs, while in acts mala prohibita, the only inquiry is, has there been a violation of the law? 5th. The law, being penal in its character, is to be construed strictly; Kent, and other elementary writers, passim.

MCGIRK, J.

In November, 1836, Russell brought an action on the case against Taylor, and declares that he was possessed of a certain slave in the State of Missouri, and that said slave went and came to the said defendant, and the defendant wrongfully and unjustly received the slave, and then and there carried and conveyed him from the State of Missouri across the Mississippi, into the State of Illinois and elsewhere, beyond the said river, the said slave not then and there having any pass, or instrument in writing, from said Russell, or any other person, whereby the plaintiff has been deprived of services, and expended money to his damage, &c. The defendant pleaded not guilty. On this plea the cause was tried. It was proved on the trial, that Taylor was the captain of a certain steamboat called Utility, which traded up the Mississippi and Illinois rivers; that the mate of the boat brought the boy on board of the boat at St. Louis. The boy did not show any pass, nor did the defendant ask for any, but the defendant shipped the slave one trip up the river, and on that trip landed on the east side of the Mississippi at a place called Alton, in Illinois, and when the boy was found on the boat at St. Louis, he was engaged to the defendant for another trip up the Illinois river. The Circuit Court instructed the jury that the plaintiff could not recover, and directed the jury to find for the defendant. It appears from the argument, that this action is founded on the first section of the act of 1822, concerning slaves; R. L. of 1825, p. 747. The act declares, “That any ferryman, or other person, who may be convicted of crossing any slave from this State across the Mississippi river, unless such slave have a pass, or permit, in writing, from his master. mistress or employer, particularly directed to such ferryman, or other person, he shall forfeit and pay to the owner or employer for the use of the person injured, all such damages and costs which may accrue, to the owner or employer of such slave, and the value of such slave, in addition thereto, to be recovered by action on the case.”

Mr. Geyer, for the plaintiff, insists the court, erred in instructing the jury, that the plaintiff could not recover. The instruction is very broad, and certainly takes the whole case from the jury. I cannot perceive, from the record, on what ground the court w...