
    NOVEMBER TERM, 1844.
    Archibald Kelly and Archibald Little v. The State of Mississippi.
    Where the caption of an indictment stated that the Court was held for the county of S., at the Court House in the town of R..; and the town of R. in S. county was incorporated by and of the legislature, and hy another act of the legislature the county site of the public buildings of S. county was located in said tovvn of R.; held, that the caption of the indictment sufficiently showed that the Court was held in the place designated by law.
    Numerical figures are admissiblo in an indictment to express numbers and dates. If, however, the figures be illegible, the indictment will be bad for uncertainty.
    Where the record shows that the jury who convicted the defendant in an indictment, were summoned by the deputy sheriff, it will be no objection to the verdict, that the Court below dismissed the'sheriff from the duty of summoning tales jurors.
    Where a slave is hilled by his master and overseer, or either, in inflicting chastisement upon him, the rules of the Common Law upon the subject of murder, will regulate the character of the offence.
    By statute of this State, the master may be indicted, in case of cruel or unusual punishment inflicted by him, for a battery upon his own slave.
    What is cruel or unusual punishment of the slave, is matter for the consideration of the jury.
    Mere intoxication is no extenuation or excuse for crime, in the view of the law. It may be a circumstance for the consideration of the jury upon the question of intention or malice on the part of the offender.
    The fact that motions to quash the venire facias, and for an alias vénire facias, were made after the arraignment and before the trial of the prisoner, and in his absence were overruled, will be no ground of exception to the verdict of the jury. Such motions might have been overruled by the Court on account of the absence of the prisoner.
    Sentence of the Court, pronounced upon conviction of the prisoners of manslaughter, in the absence of the prisoners, is erroneous. Their presence is essential to the validity of such sentence.
    A sentence of the Court, inflicting the punishment of imprisonment, not affixing the date from which the commencement of the punishment shall date, will be erroneous.
    .Where there is no objection to the verdict of the jury finding the prisoner guilty of manslaughter, but the sentence of the Court is defective, the judgment will be reversed without disturbing the verdict, and the cause remanded, with directions to pronounce a correct judgment.
    
      In error, from the Circuit Court of Smith county.
    At the April term, 1844, of the said Court, Archibald Kelly and Archibald Little were indicted jointly, for the murder of “ one Jack, a negro man, the slave of the said Archibald Kelly.” ■ On the 16th day of April, 1844, the prisoners were arraigned, and pleaded not guilty, and on the 26th of April were convicted, by the finding of the jury, of manslaughter in the first degree, and were sentenced to confinement in the Penitentiary for seven years.
    The indictment was in the Common Law form for murder, except that in the caption the grand jurors are nq,t stated to have been sworn to inquire “ for the State of Mississippi,” &c.
    The record, by the bill of exceptions, shows that the special venire for the trial of the prisoners, and the residue of the regular panel of the term were exhausted without obtaining the requisite number of jurors, and thereupon the Court, being- satisfied, as it alleged, that the sheriff was “ grossly ignorant of his duties as sheriff,” but “ there being no proof of partiality or corruption in the sheriff,” dismissed the sheriff from service in summoning tales jurors, and directed James Somers, a deputy in attendance on the Court, and waiting on the grand jury, to proceed to summon a sufficient number of tales jurors, there being no coroner in the county. The reason assigned for this opinion and action of the Court was, that the sheriff had summoned, on the special venire, several of the grand jurors by whom the indictment was found, as well as others of the original venire, and several of the jury of inquest; and before this action was had, the District Attorney had moved the Court to quash the special venire, and for an alias special venire facias, on the ground that the sheriff had been guilty of partiality and corruption in summoning improper jurors, both of which motions had been overruled. The prisoners excepted to the discharge of the sheriff, and the direction of the duty of summoning tales jurors to the deputy. The same was afterwards assigned as the ground of a motion for -a new trial by the prisoners, which was overruled, and for this the prisoners also excepted. The record shows, that the prisoners were arraigned on the 22d of April, and that they were tried and sentenced on the 26th and 27th of April; but it does not show that the prisoners were present in Court pending the trial, or when the sentence was pronounced by the Court. There is no day specified in the sentence and judgment of the Court when the punishment should commence or terminate.
    The prisoners, by counsel, moved the Court in arrest of sentence ; 1st, because the indictment does not charge any offence known to the laws of this State ; and 2d, because it is not stated in the indictment that the grand jury were empanelled, sworn, and charged to inquire for the state of Mississippi; which motion was overruled, and prisoners excepted.
    The record states and shows, that the jury who tried the cause were “sworn to speak the truth of and concerning the premises.” Several charges to the jury by way of instruction were asked by the prisoners, and refused by the Court; only those refused to the prisoners, for which exceptions were taken and allowed, will be stated. They are as follows. 2d Instruction. “ There being no system of domestic slavery known to the Common.Law of England, the relation of master and slave known in this State, as well as that between slave and overseer not having existed in England, there is nothing in the Common Law on the subject of murder, that has strict and complete application to a case of killing, as arising from the chastisement of a slave by his master, or overseer, or both.”'
    6th Instruction. “ The first description of killing is the only one that the jury can regard as applicable to the present case.”
    The 5th instruction, which had been given by the Court at the instance of the prisoners, specified the three cases of killing declared to be murder in our Penitentiary Cqde, in the order declared in that code.
    ■ 7th Instruction. In determining whether the act of killing was or was not murder, if the jury find from'the evidence that the defendants were in a state of serious intoxication, they are entitled to regard this fact as elucidatory to the point of intention,' as evidence more or less strong, according to their view of the real circumstances of the case, a§ proof of the absence of that premeditated design required by our statute in the first description of murder, as above stated in the fifth instruction, and as an indispensable ingredient of murder.
    
      9th Instruction. “ More especially if they entertain reasonable doubt of the malicious intention with which the act was done, that doubt must weigh in favor of the prisoners, and the jury must acquit them.”
    13th Instruction. “ One who is indicted for murder cannot be convicted of manslaughter; or if on such indictment the offence proved is involuntary manslaughter, the defendants should be acquitted ; ” which said 2d, 6th, 7th, 9th, and 13th instructions were refused by the Court; and the prisoners excepted.
    It was proven on the trial, as appears by the record, as well by witnesses sworn for the State as for the prisoners, that at the time of the acts charged in the indictment, both the prisoners were drunk. But the record does not present a full statement of all -the testimony in the cause.
    The Court, at the request of the district attorney, charged the jury as follows. “ That drunkenness is no excuse for crime, and that in this respect there is no difference between the Common Law and the law of this State ; that although the master has the right to chastise his slave, yet he is responsible for the proper and reasonable exercise of that right; and if he exceeds the bounds of moderation, and punish in a manner which evinces a cruel and depraved mind, regardless of human life, and death results from such cruel, reckless, and immoderate punishment, that it is murder; that if there be no other evidence of insanity in the accused but that kind of disorder of mind, which- is common to all men under the influence of ardent spirits, it is not such insanity as will excuse the commission of crime ; that if the death of the negro was the immediate and necessary result of the means employed by the accused, they are in law presumed to have intended his death ; that the statute of this State has not altered the Common Law in respect to drunkenness or insanity ; that under the indictment it is competent to the jury to find the accused guilty of manslaughter ; ” to which also the prisoners filed their exceptions, and prosecuted this writ of error.
    The errors assigned here are :
    1. The Circuit Court erred in giving the order to James Som-ers to summon tales jurors to be passed in chief as jurors, and in discharging and prohibiting the principal sheriff from performing that duty, as set forth in the first bill of exceptions.
    2. That Court erred in refusing to give the second instruction asked by the prisoners, as stated in the second bill of exceptions.
    3. It erred in refusing the sixth instruction so asked, as stated in the said second bill of exceptions.
    4. It erred in refusing the seventh instruction so asked, as stated in said second bill.
    5. It erred in refusing the ninth instruction asked, as stated in said second bill.
    
      6. It erred in refusing the thirteenth instruction asked, as stated in said second bill.
    7. It erred in refusing to grant a new trial.
    8. It erred in overruling the reasons assigned in arrest of sentence.
    9. It erred in granting the instructions to the jury asked by the District Attorney, as set forth in the third bill of exceptions.
    10. The record does not show that the prisoners were put to the bar of the Court, or were in Court pending the trial, or at the rendition of the verdict of the jury, or that they were present in Court when sentence was pronounced.
    11. The sentence is uncertain in not showing any day at and from which the punishment should commence.
    12. The record does not show, in the caption, that the Court was held in the place designated by law.
    13. The day and year in which the Court was held, and the indictment found, is stated in figures ; and the whole caption, in relation to the empanelling the jury, and the finding the indictment, is in the past tense.
    
      Foote and Swann, for prisoners.
    The sheriff cannot be removed from office, except in cases specified in the Constitution and laws. Const, art. 4, sec. 28, art. 5, sec. 19.
    The persons summoned, and objected to by the Court, were not absolutely disqualified by law to serve as jurors, so that the act of returning them would evince gross ignorance in the sheriff. Rev. Code, 136, s. 138, 1 How. 174, establishes the doctrine, that all persons are qualified, in this regard, not specially excluded by the statute cited.
    If the sheriff was disqualified to act, there being no coroner, the law required a Justice of the Peace to be summoned for the occasion. How. & Hutch. 304, sec. 46.
    If the sheriff could not serve, neither could Somers, his deputy.
    The prisoners had a right to their trial, with all the forms of the law, and administered by all the appointed officers. How. & Hutch. 689, tit. 1, sec. 1. Statute requires sheriff to summon tales jurors. Laws, 412, March, 1833.
    3d Ass. “ Law of Slavery,” 244.
    5th Ass. How. & Hutch. 722 ; 4 How. 168.
    7th Ass. 1 Russ, on Cr. 421, 428 ; Addison’s Rep. 257.
    8th Ass. 1 Chitty, Crim. Law, 551.
    10th Ass. How. & Hutch, tit. 2, p. 690, sec. 1, as to first ground; as to second, 2 Hale’s P. C. ch. 23, 167 ; 4 Bl. Com. App. ; 4 Hawk. P. C. 76 ; 2 Reble, 471.
    12th Ass. 2 Hales, P. C. 293; 18 Johns. 212. Prisoner waives no right. Lofft, 400 ; 1 Chitty, Cr. Law, 799, 712 ; -7 Cow. 525 ; 1 Wend. 91 ; 2 Ala. Rep., State v. Hughes.
    
    In behalf of the other errors assigned, it is insisted that the following errors appear, for which the prisoner ought to be discharged, as they lie “ at the foundation of the indictment,” and are not merely in its form and substance.
    1st. It does not sufficiently show, in the caption, that the Court was held at the place designated by law. 2 Hawk. P. C. edition 1824, London St. Library, p. 350, sec. 128 ; Acts, 1836, p. 399 ; Acts, 1838, pp. 95, 96, sec. 2. The act of 1836, locating the public buildings of Smith county, specifies a particular quarter section as their site, and further requires them to be placed “upon that part of said quarter section ceded by Abraham Carr to said county of Smith.”
    Although this same quarter seqtion, by the act of 1838, is embraced within the bounds of thé town of Raleigh, yet the statement in the caption, that the Court was held “ at the Court-house in the town of Raleigh,” do'es not, by any necessary implication, show that the Court-house was at the place required by the act of 1836, p. 399. It might have been on some other point or place, within the bounds of the town, and yet not on the southwest quarter section six, and on that particular part of this quarter required by the act of 1836. This must appear by the caption itself. Carpenter’s case, 4 Howard.
    2d. The day and year on which the Court was held, and the indictment found, is stated in figures; and the whole caption, in relation to the empanelling of the jury, and the finding of the indictment, is'in the past tense. This is not allowable. “ Figures, to express numbers, are ■ not allowable in indictments, though sometimes literal numbers be allowable in returns, but in indictments the numbers, whether cardinal or ordinal, must be expressed in Latin.” 2 Hale’s P. C. 170.
    £‘ It seems agreed, that such caption must set forth a certain day and year when the Court was holden, before which the indictment was found, and must record it, as there found, in the present tense, and not in the preterperfect.” 2 Hawk. P. C. 350 ; see 127, same edition ; Stark. Cr. PI. 269.
   Mr. Justice Thacher

delivered the opinion of the Court.

This was an indictment preferred in the Circuit Court of Smith county against the plaintiffs in error for the murder of a slave, the property of the plaintiff in error, Kelly, which, upon trial, resulted in a verdict of manslaughter in the first degree.

We shall proceed to notice such points.made by the plaintiffs in error which we deem to be at all in doubt.

The first objection insisted upon is, that the caption of the indictment does not show that the-Court was held in the place designated by law. It shows that the Circuit Court, at which the indictment was found, was held for the county of Smith, and at the Court-house in the town of Raleigh. The town of Raleigh, in Smith county, was incorporated by act of the legislature 1838, which is sufficient to authorize this Court to take notice of it as a place within that county. 9 Yerg. R. 381, Hite v. State. By the act of 1836, the county site for the public buildings of Smith county was located in what is now a portion of the town of Raleigh. We think, therefore, the description in the caption is made with reasonable certainty, and with as much so as can be required to designate the place where the Court was held.

It is objected to the validity of the indictment, that numerical figures'are used in it to express numbers and dates. The rule in England restraining the expression of numbers by figures, was not a regulation of the Common Law, but made by a statute which has since been repealed. There must be certainty in an indictment in order to furnish a bar to another prosecution for the same offence. But figures are a part of the English'language, and are admissible in indictments. 3 Vermont R. 431, State v. Hodgden. If, however, the figures are illegible, the indictment is bad for uncertainty.

The objection that the Court below erred in dismissing the sheriff from the duty of summoning tales jurors, we think is ineffectual. Any such act or order was void, and it is enough that the record shows the jurors to have been summoned by the deputy sheriff, which, in the eye of the law, is the act of the sheriff himself.

Several points have been urged, growing out of the refusal of the Court below to charge the jury as requested by the prisoners’ counsel.

1st. The Court below declined to charge the jury as follows ; — • There being no system of domestic slavery known to the Common Law of England, the relation of master and slave known in this State, as well as that between slave and overseer, not having existed in England, there is nothing in the Common Law on the subject of murder that has strict and complete application to a case of killing as arising from the chastisement of a slave by his master or overseer, or both.” This instruction, wó think, was properly refused. The system of slavery as controlled by the laws of this State, is peculiar, and differs in some respects from the system in other States of the Union.' It is unlike the system as it existed among the Jews, the Greeks, the Romans, and differs materially from the villanage of ancient England. Among the Jews, the death of the slave by whipping, under the hand of the master,' was merely punishable by a fine. Exodus, xxi. 20, 22. Among 'the Greeks, the young Spartans were occasionally compelled to kill all the Helots they could meet, in order to prevent their great increase. Plutarch, Life of Lycurgus. Among the Romans, there was an uncontrolled power by the owner over the life of his slave. Just. Inst. B. 1, tit. 3, s. 3*. In ancient England, the life and limb of the slave were protected against his master, because, as Lord Coke says, 127 a, he was subject to the King, — “ Vita et membra sunt in manu regisJ’ Yet in several other respects his condition did not at all resemble the condition of the slave here. But in this State the killing of the slave by the master feloniously is murder. Walker, R. 83, State v. Jones. By the statute H. & H. 162, s. 28, the master or any other person entitled to the service of the slave shall not inflict upon such slave cruel or unusal punishment, under the penalty, upon conviction thereof, of a fine of five hundred dollars. In this State the master is therefore, under the above circumstances, liable to an indictment for a battery committed upon bis slave. In the absence of similar legislation, it has been elsewhere otherwise decided. 2 Dev. R. 263, State v. Mann; 5 Rand. R. 678, Commonw. v. Turner. But anywhere in this country, the attempt to take the slave’s life, by the master or any other, feloniously, may rightfully be resisted by him. 1 Dev. & Batt. R. 171, State v. Will. Now, by the Common Law of England, masters were allowed to punish their servants with moderation. 1 Hale’s P. C. 454. What was moderation at Common Law was a question of fact for a jury, who might be masters, and here, what is a cruel and unusual punishment, is likewise in all cases a question of fact for a jury, who most generally are slave owners. It is not contended that a greater degree of punishment may not be inflicted here by the master upon his slave, than by the master upon the servant at Common Law, because such here may be usual from necessity; but the same general principle of law holds in both cases, so that the Court did not err in refusing the instruction.

2d. The Court below declined to charge the jury as follows :— iC In determining whether the act of killing was or was not murder, if the jury find, from the evidence, that the defendants were in a state of serious intoxication, they are entitled to regard this fact as elucidatory of the point of intention, as evidence more or less strong, according to their view of the real circumstances of the case, as proof of the absence of that premeditated design, required by our statute in its first description of murder, as an indispensable ingredient of murder.” As, in this case, the finding of the jury was manslaughter, no injury accrued to the prisoners from the denial of the charge by the Court. It is true that our statute, H. & H. 722, s. 2, has enacted that no person can be punished for an offence committed in a state of insanity ; but, in doing so, it has done no more, as all writers on criminal law show, than to re-enact the Common Law. It is to be noticed that the instruction under review has reference only to a single instance of intoxication, and has no reference to well defined and unmistakable insanity produced by a long continued or excessive use of intoxicating stimulants. Legal writers, from the earliest times to the present, agree that mere drunkenness is no extenuation or excuse for. crime in the view of the law. “ He who is guilty of any crime whatever, through drunkenness, shall be punished for it as much as if he had been sober.”, 1 Hawk. P. C. 3. “ A drunkard,” says Lord Coke, “is volun-tarius damon, and hath no privilege thereby.” Judge Story, commenting on the same subject, says : “ If persons wilfully deprive themselves of reason, they ought not to be ^excused one crime by the voluntary perpetration of another.” In this connexion, it is insisted by counsel that as our statute in one of its definitions of murder declares that it must be perpetrated from “ a premeditated design to effect the death of the person killed, or some other person,” and as intoxication “ steals away the brain,” such is a circumstance to infer the want or absence of a premeditated design to commit a felonious act. The fact of the party being intoxicated, has, indeed, been holden to be a circumstance proper to be taken into consideration, where the sole question is, whether an act was premeditated, or done only with sudden heat and impulse. The same may as truly be said of the passion of anger, or any other excitement arising from sudden provocation or peculiar circumstances. But how slight that consideration should be in the instance of intoxication, is readily conceived from the as equally just presumption, that the design to commit a crime may have previously existed or been contemplated, and the intoxication have been employed “to screw the courage to the sticking place.” Hence it is, that the law discriminates between the delusion of intoxication and the insanity which it may ultimately produce. For if the mere fit of drunkenness is always to be held as an excuse for crime, there is at ^once established a complete emancipation from criminal justice. And, generally, to sustain a defence on the ground of insanity, a comparison of the best authorities concludes, that it.must be clearly proved, that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did understand them, that he did not know he was doing what was wrong.

In looking through the record, we observe that in the interval, after the arraignment and before the trial, two motions were made in behalf of the State, and in the absence of the prisoners. These were motions to quash the special venire facias, and for an alias venire facias ; and they were overruled by the Court. These proceedings wrought no injury to the defendants, as they did not preclude them from preferring similar motions at the trial, had they so desired, nor does it appear but that the two motions were overruled on account of the absence of the prisoners.

But it does not appear in the record that the prisoners were personally in Court at the time of pronouncing the sentence. The presence of the prisoners is considered absolutely necessary both in England and in this countiy, in all cases where judgment of corporal punishment is to be pronounced. 1 Chit. C. L. 695; 12, Wend. 344; 7 Cowen, 525.

Finally, the sentence or judgmentuf the Cdurt below is defective in not setting forth the time from whence the commencement of the imprisonment shall date. This is, generally, from the day of the •sentence.

For the two errors just pointed out, the judgment of the Court below is reversed, without disturbing the vérdic’t, and the cause remanded, with directions to the Court below to pronounce its judgment in accordance herewith, having first duly inquired of the defendants whether they have anything further to urge why its judgment should not then be pronounced.  