RICE, J.
— To constitute the offence of larceny, according to the common law, there must be a talcing from the possession, a carrying away against the will of the owner, and a felonious intent to convert the thing taken to the offender’s use. — 3 Chitty’s Or. Law 917.
According to section 3130 of the Code, “ any person who inveigles, steals, carries, or entices away any slave, with intent to convert such slave to his own use, or the use of another, or to enable such slave to reach a state or country where he would enjoy his freedom, must, on conviction, be imprisoned in the penitentiary not less than five or more than twenty years.”
This section is, in substance, a transcript of a former statute, which had been examined and commented on by this court as long ago as 1845.—Mooney v. The State, 8 Ala. 328.
Experience had demonstrated, that the mere application of the rules of the common law, upon the subject of larceny, to slave property, was totally inefficient to protect this, the most valuable species of personal property owned in this country. To give the most ample protection to this kind of property, it became necessai'y to make a radical change in the common law. Slaves, being intelligent-creatures, possessing volition, as well as the power of locomotion, — capable of being deluded by art and persuasion, as well as of being compelled by fear or force, — it was proper, in making the change of the common law, to resort to terms suited to the nature of the property intended to be protected. The section above cited was, therefore, intended literally, as it is expressed, tó embrace all who [100]*100should either “inveigle, steal, carry, ox entice away any slave”, with either of the intents therein expressed.—State v. Miles, 2 Nott & McC. 1; State v. Covington, 2 Bailey’s Rep. 569; State v. Haskell, 33 Maine 127.
Where one man has carried away the slave of another, the question whether he is guilty of a felony or not, under section 3130 of the Code, depends on the intent with which it was done. The criminal intent, and the act denounced by that section, must both concur, to constitute a felony. If the slave was carried away by the consent of the owner, or of any person authorized to give such consent, such carrying away could not be a felony. So, if the carrying away was without any intent to deprive the owner of the subsequent use and benefit of the slave or of his value, it would not amount to a felony. So, if the carrying away was under an honest belief, in the mind of the person who carried away the slave, or caused him to be carried away, that he had the right to carry him away, or to cause it to be done, the person acting under such honest belief does not thereby become a felon, although he may be wholly mistaken in such belief. In short, whenever there is not clear and satisfactory proof of the felonious or corrupt intent denounced by the statute, concurring with the carrying away of the slave, there is no ground for a conviction for carrying away the slave.—Oliver v. The State, 17 Ala. 587.
We have selected the words “ carry away”, in the foregoing comments, for the sake of perspicuity; and having begun upon them, we shall make no special comment on the other words, “ inveigle, steal or entice away.”
The following circumstances ought to bo carefully considered, in construing the section above cited. At common law, a taking was essential to constitute larceny. Not so, as to all the offences created by this section. This omission in the statute of a taking is significant.- At common law, certain persons (for instance, bailees), who had acquired possession of goods without any intent at the time to steal them, could not commit larceny as to such goods during the time for which they were by contract to keep possession of them, unless they broke the bulk or package. But this section makes no exception — it includes “any persons” who may do either of the acts denounced by it, with the felonious intent inchoated by [101]*101its terms. It embraces the carrying away of “ any slave”, whether in the actual possession of the owner, or of a bailee, or in the mere constructive possession of the owner.
The property of the owner, in a slave hired or bailed by him to another, is recognized by law. There is as much reason for protecting it against the felonious carrying away of the bailee, as against the felonious carrying away of a third person. The law has established bounds between the interests of the bailor and bailee in the thing bailed. If the bailee transcends these bounds, and invades the rights of the bailor in the slave, by a carrying away of the slave, with the felonious intent expressed in the statute, he thereby incurs its penalty.
Conversion, and carrying away, are not synonyms, nor convertible terms. An unauthorized, illegal, and felonious carrying away of a slave necessarily includes a conversion. But a conversion does not necessarily include a carrying away. There may be a conversion, without any carrying away; and in that case, there is no felony, although the intent of the conversion is criminal.
In determining whether there has been a carrying away, the common-law rules in relation to the asportavit in larceny ought to govern, — with this qualification, that the bailment, or hiring, itself cannot be regarded as giving the consent of the owner to any asportavit of the slave by the bailee, when coupled with the felonious intent expressed in the statute, nor as authorizing any asportavit with such intent.—The State v. Covington, 2 Bailey’s R. 569; 4 Black. Com. 231, and note 7.
Sound exposition requires effect to be given to every significant clause, sentence, or word in a statute. The common usage of the words at the time of the enactment is the true criterion by which to determine their meaning.—Smith’s Com. on Stat. 630, 710.
The letter and spirit of the section in question seem to us to require the construction which wo have above indicated. Any other construction would render at least some material part of the section utterly inoperative.—State v. Miles, 2 N. & McC. 1.
If there seems to be any hardship in this construction, we are not answerable for it; the Legislature has so made the law, and we must give it effect. But we confess we see no-[102]*102tiling very shocking in punishing any man, who by bailment has been entrusted with the use and possession of a slave, and who afterwards, in disregard of the bailment, carries him away with the corrupt intent of depriving the owner of his property in him, and of converting him entirely to his own use.
Even under the common law, it has been decided, that if a man steal his own goods from his own bailee, though he has no intent to charge the bailee, but his intent is to defraud the king, yet, if the bailee had an interest in the possession, and could have withheld it from the owner, the taking is a larceny (Rex v. Wilkinson, Russ. & Ryan's C. C. 470); and.also, that if a part owner of property steals it from the person in whose custody it is, and who is responsible for its safety, he is guilty of larceny.—Ib. 478. Why, then, should it be thought harsh, for the Legislature to.
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RICE, J.
— To constitute the offence of larceny, according to the common law, there must be a talcing from the possession, a carrying away against the will of the owner, and a felonious intent to convert the thing taken to the offender’s use. — 3 Chitty’s Or. Law 917.
According to section 3130 of the Code, “ any person who inveigles, steals, carries, or entices away any slave, with intent to convert such slave to his own use, or the use of another, or to enable such slave to reach a state or country where he would enjoy his freedom, must, on conviction, be imprisoned in the penitentiary not less than five or more than twenty years.”
This section is, in substance, a transcript of a former statute, which had been examined and commented on by this court as long ago as 1845.—Mooney v. The State, 8 Ala. 328.
Experience had demonstrated, that the mere application of the rules of the common law, upon the subject of larceny, to slave property, was totally inefficient to protect this, the most valuable species of personal property owned in this country. To give the most ample protection to this kind of property, it became necessai'y to make a radical change in the common law. Slaves, being intelligent-creatures, possessing volition, as well as the power of locomotion, — capable of being deluded by art and persuasion, as well as of being compelled by fear or force, — it was proper, in making the change of the common law, to resort to terms suited to the nature of the property intended to be protected. The section above cited was, therefore, intended literally, as it is expressed, tó embrace all who [100]*100should either “inveigle, steal, carry, ox entice away any slave”, with either of the intents therein expressed.—State v. Miles, 2 Nott & McC. 1; State v. Covington, 2 Bailey’s Rep. 569; State v. Haskell, 33 Maine 127.
Where one man has carried away the slave of another, the question whether he is guilty of a felony or not, under section 3130 of the Code, depends on the intent with which it was done. The criminal intent, and the act denounced by that section, must both concur, to constitute a felony. If the slave was carried away by the consent of the owner, or of any person authorized to give such consent, such carrying away could not be a felony. So, if the carrying away was without any intent to deprive the owner of the subsequent use and benefit of the slave or of his value, it would not amount to a felony. So, if the carrying away was under an honest belief, in the mind of the person who carried away the slave, or caused him to be carried away, that he had the right to carry him away, or to cause it to be done, the person acting under such honest belief does not thereby become a felon, although he may be wholly mistaken in such belief. In short, whenever there is not clear and satisfactory proof of the felonious or corrupt intent denounced by the statute, concurring with the carrying away of the slave, there is no ground for a conviction for carrying away the slave.—Oliver v. The State, 17 Ala. 587.
We have selected the words “ carry away”, in the foregoing comments, for the sake of perspicuity; and having begun upon them, we shall make no special comment on the other words, “ inveigle, steal or entice away.”
The following circumstances ought to bo carefully considered, in construing the section above cited. At common law, a taking was essential to constitute larceny. Not so, as to all the offences created by this section. This omission in the statute of a taking is significant.- At common law, certain persons (for instance, bailees), who had acquired possession of goods without any intent at the time to steal them, could not commit larceny as to such goods during the time for which they were by contract to keep possession of them, unless they broke the bulk or package. But this section makes no exception — it includes “any persons” who may do either of the acts denounced by it, with the felonious intent inchoated by [101]*101its terms. It embraces the carrying away of “ any slave”, whether in the actual possession of the owner, or of a bailee, or in the mere constructive possession of the owner.
The property of the owner, in a slave hired or bailed by him to another, is recognized by law. There is as much reason for protecting it against the felonious carrying away of the bailee, as against the felonious carrying away of a third person. The law has established bounds between the interests of the bailor and bailee in the thing bailed. If the bailee transcends these bounds, and invades the rights of the bailor in the slave, by a carrying away of the slave, with the felonious intent expressed in the statute, he thereby incurs its penalty.
Conversion, and carrying away, are not synonyms, nor convertible terms. An unauthorized, illegal, and felonious carrying away of a slave necessarily includes a conversion. But a conversion does not necessarily include a carrying away. There may be a conversion, without any carrying away; and in that case, there is no felony, although the intent of the conversion is criminal.
In determining whether there has been a carrying away, the common-law rules in relation to the asportavit in larceny ought to govern, — with this qualification, that the bailment, or hiring, itself cannot be regarded as giving the consent of the owner to any asportavit of the slave by the bailee, when coupled with the felonious intent expressed in the statute, nor as authorizing any asportavit with such intent.—The State v. Covington, 2 Bailey’s R. 569; 4 Black. Com. 231, and note 7.
Sound exposition requires effect to be given to every significant clause, sentence, or word in a statute. The common usage of the words at the time of the enactment is the true criterion by which to determine their meaning.—Smith’s Com. on Stat. 630, 710.
The letter and spirit of the section in question seem to us to require the construction which wo have above indicated. Any other construction would render at least some material part of the section utterly inoperative.—State v. Miles, 2 N. & McC. 1.
If there seems to be any hardship in this construction, we are not answerable for it; the Legislature has so made the law, and we must give it effect. But we confess we see no-[102]*102tiling very shocking in punishing any man, who by bailment has been entrusted with the use and possession of a slave, and who afterwards, in disregard of the bailment, carries him away with the corrupt intent of depriving the owner of his property in him, and of converting him entirely to his own use.
Even under the common law, it has been decided, that if a man steal his own goods from his own bailee, though he has no intent to charge the bailee, but his intent is to defraud the king, yet, if the bailee had an interest in the possession, and could have withheld it from the owner, the taking is a larceny (Rex v. Wilkinson, Russ. & Ryan's C. C. 470); and.also, that if a part owner of property steals it from the person in whose custody it is, and who is responsible for its safety, he is guilty of larceny.—Ib. 478. Why, then, should it be thought harsh, for the Legislature to. declare that a bailee might be convicted of felony, if he carried away a slave with either of the intents specified in the statute now under consideration ? Is not such carrying away as flagitious an invasion 'of the right of property of the owner, as a taking from his actual possession and carrying away with the same criminal intent? Although the actual injury to the owner may not be quite as great in the one case as in the other, yet the injury, in legal contemplation, is equally clear in each case. And our opinion is, that both these cases are alike embraced by the letter, spirit, and intention of the section of the Code in question.
Under this construction of the statute, the error of that part of the main charge of the court which is set forth in the bill of exceptions, consists in its assertion, that the defendant was guilty, “if he had fraudulently and feloniously converted the boy to his own use”, without referring to the jurjr the true question, whether he had carried away the slave with the felonious intent to convert him to his own use.
• There was no error in refusing the charges asked by the .defendant.
There is error in the charge which informed the jury, that, if they found that there was a conflict between the special chai’ges asked by the defendant and given, and the main charge, then the latter must prevail. It was the legal right of the defendant to ásk charges to be given. It was the duty of the court either to give or [refuse them, If they were refused, [103]*103the defendant had the right to take hiSj exceptions, and obtain a revision of the refusals in this court. If they were given, the defendant was thereby deprived of his right of exception and revision. It is manifestly unjust, as well as unlawful, after the defendant’s right of exception and revision has been takenfaway by the giving of his charges as asked, to tell the jury, that they ought to deny him any benefit from those charges “ if they found that there was a conflict” between them and the main charge. Whether there was such a conflict, was a question exclusively for the court. If such a conflict existed, the court should either have withdrawn that portion of the main charge which conflicted with the special charge asked, or have refused the special charge. The court cannot avoid the decision of any question of this kind, by devolving that task on the jury.—Long v. Rogers, 17 Ala. 548; DeGraffenreid v. Thomas, 14 ib. 681.
There was no error in rejecting the proof which defendant offered to make by the witnesses Couch and Longmaster.—McBride v. Thompson, 8 Ala. 650; Thompson v. Mawhinney, 17 ib. 362; 17 ib. 109, 216, 314.
There was error in excluding the statement of Skinner which the defendant offered to prove by the witness Morton. It was a material question, whether the defendant honestly believed he had the right to carry away and sell the slave in the spring of 1854. If the defendant obtained the slave from said Skinner, and honestly believed that Skinner was the real owner, and as the real owner had conferred on him the right to carry off and sell the slave, and under such belief carried away and sold the slave, he is hot guilty of any felony. In this point of view, it is clear that the statement of Skinner above referred to should have been allowed to go to the jury. We do not say, that the jury were bound to believe it, nor how much weight it was entitled to. We say it was admissible, and that the failure of the defendant to produce the paper, or account for its absence, did not render the statement of Skinner inadmissible. Such failure goes to the credibility, but not to the competency, of the testimony. Evidence is often competent, although entitled to little or no credit.
.For the several errors of the court below, above pointed out, its judgment is reversed, and the cause remanded.