State v. Barna
| Decision Date | 31 January 1817 |
| Citation | 4 N.C. 483 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. BARNA AND LOVET JERNAGAN.—TERM, 44. |
1. Larceny or seduction of a slave under the act of 1779 (1 Rev. Stat., ch. 34, sec. 10) cannot be committed in a slave, where the owner, through his agent, consents to the taking and asportation; though such consent was given for the purpose of apprehending the felons. But where the defendants bring a slave to a particular place, after such assent of the owner, but in pursuance of a plan matured before the assent given, if the jury are satisfied that both defendants were privy to the felony and equally concerned, they may properly convict them.
2. Larceny may be committed in taking a runaway slave, knowing him to be runaway and to whom he belonged.
3. Whether a person convicted as an aider or abetter under the act of 1779 is entitled to the benefit of clergy, Quære.
4. When the charge of the judge is partly right and partly wrong, upon the law arising from the evidence, and it is impossible to say upon what part of the evidence the verdict is founded, a new trial will be granted.
INDICTMENT under the act of 1779, ch. 11, sec. 2, tried before Daniel, J., at Wayne. The indictment contained three counts: (1) Charging the defendants with having feloniously stolen, taken, and carried away a male slave named Amos, the property of J. C. Pender, contrary to the act of Assembly, etc. (2) Charging them with havingfeloniously seduced, taken, and conveyed away the slave, with an intention to appropriate him to their own use, etc. (3) Charging them with having feloniously seduced, taken, and conveyed away the slave, with an intention to sell and dispose of, contrary to the act, etc.
On the trial the jury found a general verdict of guilty against both the defendants, and a motion was made for a new trial, on two grounds:
1. For misdirection of the judge in his charge to the jury.
The evidence was as follows: Jeremiah Deans, who was the principal witness on behalf of the State, stated that he left Waynesborough on 13 March, 1816, to go to George Deans.' When he got to Dr. Brownrigg's gate, in said town, he met Barna Jernagan, one of the defendants, who took him aside and asked him when he was going to the State of South Carolina (or to the southward) with negroes. Defendant informed Deans he had five or six negroes lying out, that did not belong to him, who wished to be carried away, and he wished Deans to assist him in conveying them away. Defendant asked Deans the consequence of doing
this act. Deans informed him he did not know, but expected it would go hard with him. Deans then left him and went on, and informed George Deans of the conversation. On 18 March he was coming to Waynesborough, and met the other defendant, Lovet Jernagan, who informed him Barna wished to see him, and desired Deans to go to his house. Deans went to Barna's house, when Barna told him three of the negroes were out, viz., Amos, his wife, and youngest child, and the other three he could get out at any time. Defendant Barna informed him the negroes were John Coor Pender's. Deans and Barna agreed to meet at a sale which was to take place at Dinkin's on 20 March. He met Barna at the sale, when Barna informed him three of the negroes were not out. They then agreed to meet at Waynesborough 22 March, when Barna was to let him know when the negroes would beready to start. On that day Barna did not come, but the other defendant (Lovet) came, and informed Deans that he was to go with Deans and the negroes to the south. Witness informed Lovet that he must see Barna before he started, and sent word by Lovet that Barna must meet him at McKinne's mill. Barna met him, and then informed him all the negroes were out. They then agreed that the negroes were to be sold, and the money to be divided equally between Deans, Lovet, and Barna. He promised to deliver the negroes at a mill-stream of Mrs. Boon's, in the county of Johnston, on the night of 24 March, when Deans was to be ready to receive them, and, with Lovet, to take the negroes to the southward. Deans asked him for a bill of sale. He agreed to give one. Deans wrote it, and was requested by Barna to insert other than the true names of the negroes, as he expected they would be advertised. After the bill of sale was written, Barna refused to sign it, but said he would prepare one and bring it with him when he delivered the negroes. Deans informed Pender of the whole transaction, who advised Deans to go on in the business. Deans and Pender had men placed at Smithfield bridge to apprehend the negroes and Lovet, one of the defendants. Deans went to the mill-stream on the night of the 24th, as agreed on. About 10 o'clock at night Barna and Lovet came to him and informed him the negroes had taken a scare, expecting a trick, and would not go unless Deans would assure them that they were really going to the southward, and he must go back with them along the road where they were. Deans then went back from three to five miles with defendants, to a place (which was proven to be in the county of Wayne, 12 or 15 miles from defendant's house, when Barna called, "Bush!" No answer was given. Barna then rode into the woods and returned with the negro man Amos. He (Barna) and Amos again returned into the woods, and brought the woman and
children. Barna put one of the children into the lap of Deans, and Amos, the negro man, put another behind Lovet, on his horse. Deans, Lovet, the negro Amos, and the others, then proceeded on their intended route. After traveling all night, they were taken at daybreakby the men placed at the bridge for that purpose.
It was proven that the negro Amos was the property of Pender, and known to be such by defendant. The negro Amos had been runaway from Pender upwards of nine months, and was out of the actual possession of Pender at the time aforementioned, but in the possession of no other.
The judge, in his charge to the jury, told them if they believed the evidence, every material allegation in the indictment was sufficiently proven. He further told the jury that if they were satisfied from the evidence that Lovet was present, aiding and consenting to the transaction, he was equally guilty with Barna, who was the active person; and it was his opinion the agency Lovet took in the affair, from the time Amos was put into his and Dean's possession in the road to the time they were taken at the bridge, he well knowing Amos to be the slave of Pender, and conveying him on with a view to sell to some person to the southward, was sufficient to convict him under the statute.
2. Because defendants were improperly refused a challenge for cause, made to one of the jurors.
Needham Whitfield was drawn as a juror, and examined as to his competency. He was asked whether he had formed an opinion as to the guilt or innocence of the defendants. He replied, he had formed an opinion. He was then asked if he had expressed that opinion. He replied that he believed he had. He was then asked by the court, to whom he had expressed his opinion. He answered that he could not recollect, but that he believed he had expressed it, but was not certain. He was then asked by the prisoner's counsel where he stayed the preceding night, and whether the case of the prisoners was not the subject of conversation, and whether he had then expressed his opinion. He answered that he stayed at Dr. Brownrigg's; that the case of the prisoners was there the subject of conversation, but that he did not recollect that he then expressed any opinion.
He was challenged by the prisoners for cause, and thechallenge overruled by the court. Being tendered to the prisoners, they challenged him peremptorily. They made twenty-eight peremptory challenges.
The motion for a new trial was overruled, and an appeal taken to this Court.
TAYLOR, C. J. I ought to distrust the correctness of the opinion I am about to deliver, when I perceive that it differs from that of all my brethren in relation to the prisoner Lovet. But as I have examined with attention all the cases cited, and cannot see my way clearly in any other direction, I feel it to be an indispensable duty to pronounce the best results my own understanding will enable me to arrive at.
These are, (1) That the evidence against Lovet was too slight and unsatisfactory to authorize his conviction; and that even in a common question of property, a verdict so found ought to have been set aside. (2) That if, upon any view of the testimony, the verdict against Lovet can be sustained, he is nevertheless entitled, under a fair construction of the act under which he is indicted, to the benefit of clergy.
I will give the reasons which have led me to these two conclusions, and will afterwards speak to some minor points in the case.
1. The natural division of the testimony is into those circumstances which took place before Pender had been made acquainted with the transaction, and consented to it, and those which occurred aferwards. If nothing but the latter class had been proved against either of the prisoners, I think they ought both to have been acquitted, on account of the assent of Pender; and I take this opportunity of expressing my entire concurrence with the doctrine laid down in McDaniel's case, Foster, 121. These latter circumstances can only affect the prisoners, by way of evidence, so far as they can be connected with proofs of guilt existing before Pender's consent was given; and I agree, if anything be proved before that time which implicates Lovet in the crime of stealing or seduction, his subsequent conduct of carrying the slaves to Smith-field bridge may properly be connected with such proof. But beyond this point, I do not feel justified in proceeding. If Lovet was not a guilty man before Pender consented to the larceny, I cannot agree that he shall be considered so afterwards.
In considering the testimony, I cautiously abstain from drawing any inferences from the facts stated; that is the...
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State v. Adams
...had told a servant to go to the defendant's house, and persuade him to come and steal the sack. Dodd v. Hamilton, 4 N. C. 471; State v. Barna, 4 N. C. 483. It was also error to refuse the fifth prayer for instruction, "that larceny cannot be committed when the owner, through his agent conse......