United States v. Collins

25 F. Cas. 545, 2 Curt. 194

Opinion

CURTIS, Circuit Justice.

I do not think you can maintain this indictment by proving the case opened. The act describes four distinct offences. Beating or wounding, imprisoning, deprivation of suitable food and nourishment, infliction of any cruel and unusual punishment. Each of these is a substantive criminal act, when proceeding from malice, and without justifiable i ause, and one of these offences cannot be properly described in the indictment by words used in the act of congress to describe another of-fence. If the defendant inflicted the punishment of flogging, from malice, he' should have been indicted for beating and wounding the seaman, not for inflicting a cruel and unusual punishment. That clause was not designed to include the punishment of flogging, which was not an unusual punishment when the act of 1835 was passed. On the contrary, it was the kind of punishment then most usual, and known to and sanctioned by the law. However unjustifiably it may have been inflicted, it is not a kind of punishment against which these particular words in the act were directed, and consequently the defendant must be acquitted.