State v. . McDowell , 8 N.C. 450 ( 1821 )

The indictment charges that the defendant broke in and upon the possession of Sarah Somers and took away her slave. The truth of the case was, that the slave, under the immediate control and in the possession of James Somers, was five hundred yards distant from Sarah and in another's field. Though, for all civil purposes and to protect the right of Sarah, this possession of James' would be considered as hers, yet the principle on which such construction would be made does not apply to indictment in which there is "no latitude of intention to include anything more than is charged; the charge must be explicit enough to support itself." 2 Burr., 1127.

To sustain this charge, by such proof as was given of the possession, would be to convert an action of trespass into an indictment. If the latter will lie for taking away the slave, it must be for a violent taking from the actual possession of the person at the time. The injury done to Sarah in this case consisted in the loss of her property, which may be redressed by a civil action. But the injury done to the public, if any, consisted in the violence and outrage with which James Somers' possession was invaded. A new trial is consequently awarded.

Cited: S. v. Love, 19 N.C. 268; S. v. Laney, 87 N.C. 538.

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