Opinion
(December Term, 1860.)
One to whom a free negro is hired by a court for the payment of a fine (Rev. Code, ch. 107, sec. 75) has no right to beat him for an unlawful object, or of malice.
ASSAULT AND BATTERY, tried before Dick, J., at Spring Term, 1860, of WASHINGTON.
Attorney-General for the State.
Winston, Jr., and H. A. Gilliam for defendant.
The offense is alleged to have been committed on the body of one Richard Fisher, a free man of color, and the jury found a special verdict to the effect "that the said Fisher had before that time been convicted of larceny, in the county court of Washington, and by the court was ordered to be sold for the fine imposed, to cover the costs, and was so sold for five years to one Peacock. Before the expiration of this time, Fisher was taken up on the charge of killing one (221) Hussell, who was found dead in his yard, and the defendant gave him five licks to make him show where the gun was with which he killed Hussell. Peacock was present when Fisher was whipped, and gave his consent to it, and said "it ought to be done." Upon this finding, his Honor was of opinion that the defendant was not guilty, and so adjudged; from which judgment the State appealed.
The judgment of the court below upon the special finding of the jury was erroneous. The leading facts of the finding are, that the man Fisher, upon whom the battery was committed, had been hired to one Peacock, to pay the penalty in a case of misdemeanor, and therefore stood by the terms of the law, Rev. Code, ch. 107, sec. 75, in the relation of apprentice to Peacock. Peacock assented to the battery. The battery was committed to compel Fisher to furnish evidence of his own guilt, upon an accusation of homicide.
No free person of whatsoever color can, according to law, be thus coerced. It cannot be done by the person who stands in the relation of master, and his assent, therefore, cannot legalize it. It is unnecessary, as we think, to enter upon a general discussion of the relation between master and apprentice under this law of the Code; for, however it may be as to their respective rights and duties in other respects, we are clear the master cannot whip for an unlawful purpose. If the apprentice, under the law, be in the condition of one who can be whipped for correction, and we hold the man may be whipped for such an object, still, the power of punishment in this way would be restricted to lawful objects, and if, under pretense of correction, the master whipped of malice, or, which we regard as equivalent, for an illegal object, it would be a violation of law. Where one has a discretionary power of (222) whipping for correction and resorts to it in good faith, the law will not hold him to an account for any error of judgment in respect of the need for it, or in respect to the amount, unless it be grossly excessive. But it is different where the whipping is inflicted for an unlawful object or of malice. In such cases every blow is an unlawful battery. It has been thought proper by the Legislature to place the negro convict who is sold for the pecuniary penalty annexed to his offense in the condition of an apprentice. This relation we find regulated by general principles, and to the benefit of them the man is entitled in this case. The five blows inflicted under the circumstances make it a case of minor importance; but, nevertheless, we think, for the reasons given, that it is technically an indictable battery.
The judgment below should be reversed, and judgment entered on the verdict for the State.
PER CURIAM. Reversed.