Freeman v. Scurlock , 27 Ala. 407 ( 1855 )

CHILTON, C. J.

1. His Honor charged the jury, that the evidence was not sufficient to make out a conversion of the slaves, against either of the defendants. This charge can only be supported, in cases where, had the party in whose favor it was given demurred to the evidence, the judge might properly have sustained the demurrer. In such case, as the party demurring to the evidence is required to admit as a fact what the evidence tends reasonably to - establish, so that the duty of trying the facts shall not be devolved upon the court, but merely the duty of declaring the law arising upon them, (Bryan v. The State, 26 Ala. R. 65,) it follows, that if there be any evidence which reasonably tends to show a conversion of the slaves by either of the defendants in the case before us, the charge cannot be supported. We say that such would be the case, where the evidence reasonably tends to prove a conversion ; for we are not prepared to hold, that where the testimony adduced is so light and inconclusive, that no rational, well-constructed mind can Infer from it the existence of the fact which it is offered to establish, we should reverse the cause, should the judge instruct the jury to disregard it. — Clarke v. Marriott, 9 Gill, 331. It is not necessary, however, in view of the facts of this case, to decide this point.

The slave Lucy and her child were shown to belong to the plaintiff. The deed, executed upon the separation between him and his wife, -attempting to vest in the wife the title to said slaves, was-inoperative as respects the husband’s legal rights, whatever might have been its effect in a court of equity. The plaintiff had sued in detinue the brother of his wife, to recover said slaves, and an order for their seizure by the sheriff had been obtained. The sheriff, with this process, had gone to the neighborhood from which they were taken, as will presently be stated, in search for them, only two days before they were carried uff.’ The slaves, with Mrs. ‘ Freeman and her two brothers, one of them the defendant in the detinue suit, and the other the defendant in this action, all left the premises of Mrs. Scurlock, where they had been for some time, in the night. Cliett, the other defendant, met them, with the wagon in which they went to Montgomery, three and a half miles from "where they started, at eleven o’clock at night, and they all went to Montgomery together. They were, when Cliett met them, twenty-five miles from Montgomery, and traveled an unusual route, — were stopped that night by high water, and went on to Montgomery next day, where the defendant, Wm. Scurlock, and his sister, Mrs. Freeman, proceeded to Texas with the slaves by steamboat ; and T. Scurlock and Cliett returned home. It appears that neither Mrs. Freeman,"nor the slaves, have since returned to this State. It is stated in the bill of exceptions, that it was in evidence “ that the party expected to be met, or interrupted, that night by the plaintiff, and that they had nothing to say out of the family about their determination to take the negroes off. There was evidence, also, tending to show that T. Scurlock had engaged Cliett’s wagon, without telling him the object, and that neither Cliett nor Wm. Scurlock, who was a minor, exercised control over the slaves, and that the latter went to Texas as the escort of his sister.”

Now, we desire to express no opinion upon the facts of this case. It is the province of the jury to try the facts. But the question, whether there was evidence reasonably tending to establish a conversion, is necessarily involved in our decision of the cause. If there was, it was not competent for the judge to withdraw it from the jury, who alone were the judges of its sufficiency. — Sims v. Glazener, 14 Ala. R. 695; Nelson v. Iverson, 19 Ala. R. 95.

2. That the proof tended to establish a conversion, on the part of both the defendants, we do not entertain a doubt. What is a conversion ? It is not confined to the unlawful turning, or applying of the personal goods of another, to the use of the taker. Nor is it necessary to constitute a conversion that the party should have had the exclusive control or dominion over the goods, or the actual manucaption "of them. | The term has a more enlarged legal import, and embraces any intermeddling with, or dominion^ such i versive of the dominion of the true o^ier, ,oryS> the najare of the bailment, if it be bailed. If one p'&j^on^ssisNaiiother in taking and removing the goods of anotherTañcl placing them without the owner's control, or beyond his powek to obtain them, with intent to appropriate them' to his own or another’s use, and does it under such circumstances as afford reasonable notice that such removal is unlawful, and in derogation of the rights and subversive of the dominion of the true owner, they are both equally guilty. A forcible illustration of this principle is afforded by the case of Thorp v. Burling, 11 Johns. R. 285. See, also, 1 Nott & McCord, 592; 1 Har. & Johns. 519; 7 Johns. R. 254; 10 ib. 172; 14 ib. 128.

It was for the jury to determine whether the parties were not participating in and forwarding a common design to get the property out of the country, and to deprive the true owner of it. If there was no such design, or the defendants acted under such circumstances as to afford them no reasonable notice of it if it existed, they would not be liable, any more than the boat that, in the best of faith, may have taken them down the river. — 8 Excheq. R. 540. But then the jury had the right to look to the circumstances. Why start off in the night, when the sheriff was known to be hunting for the slaves? Why does Cliett meet them at eleven o’clock at night,- — an unusual time for a female to' set. out upon a journey ? Did he engage to do this without a knowledge of the emergency ? — without making inquiry as to why they did not go in the day time ? He finds'them on the road three and a half miles from where they live, at this late hour, going to Montgomery with these slaves. Would such a circumstance excite no suspicion of wrong ? Would not an honest, prudent man very naturally suppose that the parties were absconding with these slaves? Without answering these queries, it is enough that they naturally arose from the -evidence, and were improperly excluded from the jury.

If the defendants united with Theodosius’Scurlock in the unlawful design of removing the slaves, and actually carried ■out that design, by going with them to Montgomery, that they might be taken on to Texas for the benefit of Mrs. Freeman, they are guilty of a conversion, and no demand is necessary. It matters not which of them told the slaves to get in or out of the wagon which conveyed them, or appeared to exercise the control. Being actually present, aiding and assisting, with the intention of wrongfully depriving the owner of his property, each act, in furtherance of the common design, is the act of all, and all are liable.

As this is the only question presented by the charge, we deem it unnecessary to go further and notice others made in the argument.

Let the judgment be reversed, and the cause be remanded.