Opinion
December Term, 1852.
1. Upon the conviction of a slave, under the 48th section of 111th chapter of Revised Statutes, the owner, and not the hirer, is liable for the costs of the prosecution.
2. The case of the State v. Mann, 13 N.C. 263, cited and approved.
THE prisoner was indicted at CASWELL, at the Fall Term, 1851, for burglary, of which, upon his trial, he was acquitted; but was found guilty of grand laceny. In the bill of indictment, he was charged to be the property of George Williamson, who was duly notified to come forward and defend him. It was proved that said Williamson was his owner, but during that year he had hired him to one John F. Wagstaff, who also had notice to appear and defend the slave. After sentence was pronounced against the slave for the offense of which he was convicted, his Honor, Judge Ellis, gave judgment against the said Wagstaff for the costs of the prosecution, from which he appealed to the Supreme Court.
Attorney-General for the State.
Miller for defendant.
The authority upon which his Honor proceeded in giving the judgment from which the appeal is taken, is to be found in the 48th section of the 111th chapter of the Revised Statutes. The section provides, that, "when a slave shall be apprehended for any (7) offense, the punishment whereof may affect life, member, or limb, it shall be the duty of the sheriff, and he is hereby required, to serve the owner of such slave, if known, with notice of the trial ten days previous thereto (which notice shall be proved to the court), in order that the owner may have an opportunity of defending said slave"; and it then goes on to declare, that all costs attending the trial of such slave shall, in case of his conviction, be paid by the owner or owners. His Honor must have supposed that the temporary hirer was the owner, within the meaning of the statute, and in that, we think, he erred. We are not aware of any adjudication upon the point, but upon a proper construction of the act, we think the permanent owner, and not the mere hirer for a year, was the person intended. There can be no doubt that the owner, who is to pay the costs in case the slave be convicted, is the same person upon whom the notice of trial is directed to be served. Upon whom, then, is that to be? Certainly the one who has the greatest interest in the life, member, or limb of the slave who is about to be tried. The very reason given in the statute for ordering a notice to be served, shows that the Legislature desired to act with justice to him whose property might be affected by the result of the trial, and with humanity towards the slave, whose life or limbs might be in jeopardy. Such being the manifest object of the Legislature, it is reasonable to suppose that it intended to notify the person who would most probably attend to the monition, and not one whose interest in the slave would be so slight that he would most likely be unwilling to incur the trouble and expense of a defense. That this is a proper construction of the enactment in question, is more clearly shown by a reference to other sections in the same chapter, and to the sections 75, 79, and 84 of the 34th chapter of the Revised Statutes. In the 19th and 45th sections, the former of which points out the mode by which the proceeds of the sale of a runaway slave may be recovered, and the latter prescribes that in the county and Superior Courts, a slave shall be entitled to trial by a jury of freeholders, who shall also be slave owners, it is obvious that none but permanent owners were meant, and, therefore, no other word than "owners" was used to describe them. But in the 26th section, where the policy was to make any person who had slaves in his employment liable for their depredations, if they were not well (8) clothed and fed, the words, "master, owner, or possessor," are employed. So, in the enactments relative to trafficking with slaves, and sending slaves to hunt in the woods with a gun in the night, by firelight, the terms used are, respectively, "owner or manager," chapter 34, section 75 — "owner, overseer, or employer," same chapter, section 78 — and "master or the person in whose service the slave may be," same chapter, section 84. Thus we see, then, when the Legislature intended to embrace, in any enactment, persons other than the absolute owners, having slaves in their service or employment, it used suitable words to designate them, and to distinguish them from such owners. We think, then, that the conclusion is a fair one, that when the term "owners" only is used, it means the absolute owners in contradiction to the mere hires or temporary owners.
In coming to this conclusion we have not overlooked the case of S. v. Mann, 13 N.C. 263, referred to by the Attorney-General. That case decided, only that one who has a right to the labor of a slave, has also the right to all the means of controlling his conduct, which the owner has; and like the owner, cannot be indicted for a mere battery upon him. That principle no more entitles the hirer to all the rights, and imposes upon him all the responsibilities of the owner, than does the principle which makes a schoolmaster stand, in some respects, in loco parentis, make him so stand in all respects.
The judgment against Wagstaff must be reversed, which must be certified to the Superior Court of law for the county of Caswell, in order that that court may proceed to give judgment for the costs of the prosecution of Levi against his owner, George Williamson.
PER CURIAM. Judgment reversed, and ordered accordingly.
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