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tina, there is strong or probable grounds to
believe that the offence was committed by
the Prisoner, and he should not be discharg-
ed on Habeas Corpus. In order to con.
stitute the crime of larceny or negro steal
ing there must be caption and 0sportd-
ton. To constitute caption the negro
must have been in the actual or construc-
tive possession of the Prisoner, his aiderS
or abettOrs. To constitute an asportation
the Prisoner must have had some control
over the negro and his movements, either
directly or indirectly. There is no evi>
dence in this case that felony has been
committed by any one. There is no evil
dence that the negro was stolen. There
is no evidence that either Coley or the
Prisoner had ever seduced the negro into
possession. But all of the witness not on.
ly negative the presumption of possession,
but show clearly & conclusvely the negro
had not at the time Of the arrest been Sc
duced into the abstract or constructive
possession of either COley or the Prisoner.
Although the circumstances Of the case
carry conviction to the mind that there
was an intention on the part of Coley, TO
steal the negro and that the Prisoner
was to be an alder and abettor in the trans
action, but a mere intention to commit an
offence is not sufficient to constitute the
offence itself.


Under our statue the negro was not
even a runaway. He must have been
eight miles from home without pass or
must have lain out from home more than
two days before he could be considered a
runaway. The negro it seems was only
mile or two from the residence Of his
master, and had only been gone three or
four hours. The fact Of the negro riding
along the road at s or 8 o'clock at night, a
short distance behind Coley on his masters
mule in the neighborhood Of his residence,
is not sufficient evidence of caption and
asportation on the part even OF Coley, and
much less the Prisoner, who was several
miles distant riding upon the public high.
way. The only evidence against the
Prisoner are his own confessions, g. they
only admit his knowledge Of the intentions
of Coley, which | repeat do not constitute
a crime. The heretofore good character
of the Prisoner; the responsibility Of his
parents and family; his extreme youth
and punishment already inflicted on him
by having been confined four months in a
dungeon loaded with chains, as feeIingly
and eIoquently depicted by his counsel
may have enlisted my feelings but cannot
change the law Of the case. Let the Pris-
oner be discharged.


PLUMMER.