the indictment, which, omitting the names of the jurors, is as follows: "The grand jurors, sworn, chosen, and selected, for the county of Chatham, in the name and behalf of the citizens of Georgia, charge and accuse Alanson Greenman, of the county of Chatham and state aforesaid, with the offence of simple larceny. For that the said Alanson Greenman, in the county aforesaid, on the thirteenth day of April, in the year one thousand eight hundred and forty-one, a negro woman-slave named Kezia, the property of Robert Willis Flournoy, of said county, of the value of one hundred dollars, then and there being found, wrongfully and fraudulently did take and carry away with intent to steal the same, contrary to the laws of the said state, the good order, peace, and dignity thereof." It is essential to an indictment for larceny that it allege that the taking and carrying away were felonious and with intent to convert the goods to the use of the taker. The grand jury in the present case do not allege that the taking was felonious and with intent to convert. The indictment, therefore, charges only a trespass, not "treason, felony, or other crime." It is true the grand jury represent that the taking was fraudulent and unlawful, and with intent to steal; but not every fraudulent and unlawful taking is felonious, and the intent to steal can not exist when the goods are not taken with intent to convert them to the use of the taker. It is a felonious taking with intent thus to convert the goods, and not an intent to steal them, that must be distinctly charged. When the former is charged, the latter must be inferred. I respectfully decline to comply with your excellency's demand for the reason that the indictment does not convey a legal charge of larceny. I beg leave, however, to observe that I am not to be understood as conceding that a human being can, in law, be regarded as "goods" and the subject of larceny. I respectfully reserve that question, and also the questions whether, if an indictment should charge a crime, I should be bound to surrender an offender thus charged, in a case where I had cause to believe the offence was constructive or groundless; and whether this is such a case. Your excellency will, I trust, find enough in our past correspondence to justify the circumspection which I have deemed it my duty to observe on the present occasion. Your excellency informs me that the offence is the same with that mentioned in certain affidavits of Mr. Robert Willis Flournoy, heretofore made the basis of a requisition for the same offender, and the dates refer to the same transaction complained of in those affidavits. You will remember that by two very vague and defective affidavits, Mr. Flournoy induced your excellency erroneously to represent to me that the fugitive had committed two larcenies, when in truth the two supposed offences were one and the same transaction, incapable of division into two crimes. Confiding in Mr. Flournoy's very vague and erroneous notions of law, your excellency was led to insist for a long time upon the surrender of a person on a charge of having stolen from Mr. Flournoy certain goods; when, according to the facts of the case, the goods were the personal apparel of Mr. Flournoy's slave, and worn by her in her flight from her master; and the accused was in no other manner guilty of stealing than by persuading and aiding her to regain her liberty. Dropping two accusations of larceny into which Mr. Flournoy has heretofore divided the transaction, he now represents it to a grand jury as constituting three other offences, to wit, trespass, kidnapping, and secreting his slave. I await your excellency's further communication on the subject, and have the honor to remain in the interval, With very high respect, your excellency's obedient servant. HIS EXCELLENCY CHARLES J. M'DONALD, Governor of the State of Georgia. LETTER V. TO THE GOVERNOR OF GEORGIA. STATE OF NEW YORK, EXECUTIVE DEPARTMENT, } SIR: In the year 1839, a requisition was made upon the executive authority of this state, by the executive authority of Virginia, for the surrender of certain persons represented as having been charged with stealing a slave. The supposed fugitives having been committed to custody, went before a judicial officer, under a writ of habeas corpus, and were discharged, upon the grounds that the affidavits accompanying the requisition were defective in form, and insufficient to charge a crime even in the state of Virginia. The demand was, nevertheless, insisted upon, and the executive of this state, after a due consideration of the subject, decided that the affidavits were defective, unsatisfactory and insufficient, and therefore declined to issue a warrant in compliance with the requisition. The executive of this state foreseeing at the same time, that if the affidavit should be amended, a grave constitutional question must be decided; and unwilling even to seem disposed to evade such a question by technical proceedings, submitted an opinion that the supposed offence of stealing a negro slave from his master in Virginia, as defined by the laws of that commonwealth, was not a crime within the meaning of that provision of the constitution of the United States, which authorized the demand and surrender of fugitives from justice. The executive of Virginia controverted this opinion. The very important question, thus raised, has been the subject of a correspondence between New York and her sister-state, which, although it was conducted on both sides with a sincere desire to avoid collision and to arrive at an adjustment, has, nevertheless, resulted in proceedings on the part of Virginia, believed to be in conflict with the constitution of the United States, and prejudicial to the harmony of the American family. Your excellency was pleased in June last, to address to the executive of this state a requisition, in a case which, supposing the proofs accompanying the demands to have been sufficient in form and substance, would have presented the same question. It would have been presumptuous to suppose, without evidence, that the existence of the difference which had unhappily arisen between this state and Virginia, was at all known to your excellency; but it had been made known to the executive of this state, through the courtesy of the late distinguished chief-magistrate of Virginia, that in obedience to the request of the general assembly of that commonwealth, he had submitted the correspondence to your excellency. Although it was not understood by the executive of New York, what results, auspicious to the harmony of the states, were expected to follow from a discussion of the same question with another party; yet no disposition was indulged to deny for a moment your excellency's right to a decision upon the question submitted, or to decline a discussion of the grave subject, which, according to your views of the case, it involved. But your excellency had inadvertently suffered the subject to be presented under some embarrassments. Your excellency had seen fit to combine with your charge of stealing a female-slave, a supposed charge of stealing the blankets, shawls, frocks, and rings, worn upon her person, and from the precedence assigned to that offence, it was understood that it was deemed the more important one. There was the further difficulty, that neither charge was presented with legal formality and certainty. The executive of this state respectfully called your attention to these circumstances as insuperable objections to a compliance with the requisition. Your excellency was pleased in due time to supersede the former case, by a requisition grounded upon an indictment, from which it appeared that the supposed larceny of the slave's clothing and ornaments was no longer insisted upon, but that the transaction was presented in three new aspects. In the communication from this department, made on the 26th of October last, your attention was solicited to the considerations that harboring a slave was not necessarily criminal, and that the charge of that offence had not been adopted in the new requisition, and that the kidnapping alleged in the second count was also overlooked in the requisition. It was remarked in regard to the count, which you insist charges a simple larceny, that it was essential to every indictment for that crime, that it should show that the taking was felonious, and with intent to convert, and that the grand jury had omitted so to define the taking in the case submitted. Your letter of November 22d insists only upon the charge of larceny of the slave. The executive of this state has much pleasure in acknowledging that the case is now rendered more simple than it was at any former period; the charges of stealing the apparel and trinkets, of harboring the female, and also the very grave offence of kidnapping, being no longer in question. In regard to the point still adhered to by your excellency, the executive of this state has the misfortune of being unable to find in the offence which your excellency pronounces a simple larceny, anything different from a simple trespass. Not controverting the position that, according to the common law, the word feloniously is necessary in every indictment for larceny, your excellency, nevertheless, is pleased to remark that, according to that standard, it is not necessary that the indictment should allege that the taking was with intent to convert the goods to the use of the taker. Since you prefer that the proposition of the executive of this state shall be amended so that it will read "that the word "feloniously' is necessary in every indictment of larceny," and shall altogether omit what is said of the necessity of alleging an intent to convert the property to the use of the taker, it may be so read, and in that form it remains unquestioned. Inasmuch, then, as your indictment does not contain the word "feloniously," it is defective and insufficient, and charges only a trespass. Your excellency's implied concession to this effect is defensible upon the authority of Chitty, who, speaking of necessary words in indictments for felony, says: "and these words are so essential, that if the word 'feloniously' be omitted in an indictment for stealing a horse, it will be only a trespass." But, although it is no longer necessary, your excellency will allow the executive of this state most respectfully to insist on the position before maintained, that it is essential to an indictment for larceny, that it show the taking to have been with a felonious intention to appropriate the property to the use of the taker, and to refer you (as it would be presumptuous to do if the absence of references had |
