Commonwealth v. Booth

2 Va. 394

Opinion

*R. E. PARKER, J.,

delivered the opinion of the Court:

(After stating the Case,) he proceeded thus : The last clause in the special verdict, is understood to refer the following question to the Court. Under an Indictment in the common form for an aggravated assault, upon the slave of Robert Fenn, can the Defendant be found guilty, and punished, upon evidence proving him to have made such assault upon a slave held by himself as an hireling, that is, upon his own slave for the time being ? If this is the question propounded by the jury, and we can give these words no other construction, a majority of the Court, think it ought to be answered in the negative.

The Indictment is in the common form, and will reach all cases where the first assault is unlawful per se, no matter what peculiar circumstances attended the catastrophe. But where the original assault is justified by the relation of master and slave, and the gravamen of the charge is the want of moderation in the subsequent chastisement, we think the Indictment ought to be more special than the one at bar, and ought to state distinctly, the connection of the parties, and to shew that it is the excess of the punishment which is complained of, and not, that the right to punish.at all, is questioned. Tn looking into the forms of Indictment against masters for ill-treating their apprentices,

Footnotes

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(a)' we find that these circumstances are set out, and we are not disposed to depart from those forms, especially, where they seem to have reason on their side. The offence of making an unlawful assault upon the slave of another person, however cruel and severe the subsequent battery, is, certainly, not the same offence with making an assault upon one’s own slave, which,in general, becomes unlawful by subsequent excess and inhumanity, and, if this last is intended to be the charge against the Defendant, he ought to have clear notice of it, by the frame of the Indictment.

In the present case, the Defendant sufficiently answered the general charge preferred against him, of cruelly beating Robert Fenn’s slave, by proving that he had himself for the time the ownership of him, which so changed the nature of the offence, as to entitle him to a judgment under this Indictment, and we accordingly answer the ^question proposed, by ordering it to be certified to the Court below, that judgment on the said special verdict, ought to be entered for the Defendant.

In giving this judgment, however, we mean to express no opinion as to the first point submitted by the verdict. That, involves agrave and serious, as well as delicate enquiry into the rights and duties of slaveholders, and the condition of their slaves, which we shall be prepared to enter upon with a due sense of its importance, whenever a proper occasion arises. The present Case is decided without reference to this more interesting question, and is not intended, in any manner, to affect it.

3 Chitty’s Crown Law, 829.