
    Worley vs. the State.
    The act of 1829, ch. 25, sec. 55, provides that no person shall maliciously and unlawfully by cutting, or otherwise, cut off, or disable the organs of generation of another, or any part thereof. It is held that this section applies to the offence when committed by a white man on the body of a slave. 2nd, The charge in the indictment that the offence was committed wilfully, maliciously, and unlawfully, is sufficient, without a negative by separate averment of the proviso contained in sec. 55. 3rd The castration being unlawful, the malice is implied but may be removed by the circumstances of the case. The slave was castrated deliberately with a view to correct his vicious and lawless habits. This does not remove the malice but proves its existence.
    The indictment in this case was follows:
    The Grand Jurors, for the State of Tennessee, elected, empannelled, sworn and charged to enquire for the body of the county of Giles, aforesaid, upon their oath aforesaid, present that Gabriel Worley of said county, yeoman, on the first day of June, in the year of our Lord one thousand eight hundred and forty eight, with force and arms in the county of Giles, aforesaid, in and upon one certain negro man slave named Josiah, in the peace of God, and of the State, then and there being, feloniously, unlawfully, maliciously and of his malice aforethought, did make an assault and with a certain razor of the value of twenty-five cents, which he the said Gabriel Worley in his right hand, then and there, had and held, then and there feloniously, unlawfully, maliciously, and of his malice aforethought, did strike, cut off, and disable the organs of generation of him the said slave Josiah, thereby, then and there, by the cutting, and striking with the razor aforesaid, in manner and form aforesaid, the said slave Josiah was maimed and disabled to the great damage of him the said slave Josiah, contrary to the form of the statute, in such case made and provided, and against the peace aud dignity of the State. And the Grand Jurors aforesaid, upon their oath aforesaid, do further present that the said Gabriel Worley afterwards to wit: on the said first day of June, in the year of our Lord one thousand eight hundred and forty eight, with force and arms in the county of Giles aforesaid, in and upon a certain other negro man slave named Josiah, in the peace of God, aisd of the state, then and there being, feloniously, unlawfully, maliciously and of his malice aforethought did make an assault, and with a certain sharp instrument, then and there feloniously, unlawfully, maliciously and of his malice aforethought, did strike, cut off and disable a part of the organs of generation of him the said last mentioned slave Josiah, thereby, then and there maiming and disabling him the said last mentioned slave Josiah, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State. And the Grand Jurors aforesaid, upon their oath aforesaid, do further present that the said Gabriel Worley afterwards, to wit: on the first day of June in the year of our Lord one thousand eight hundred and forty eight, with force and arms in the county of- Giles aforesaid, in and upon a certain other negro man slave named Josiah in the peace of God, and of the State then and there being feloniously, unlawfully, maliciously and of his malice aforethought, did make an assault, and with a certain sharp instrument, then and there feloniously, unlawfully and maliciously, and of his malice aforethought did strike, cut and castrate him the said last mentioned slave Josiah, thereby, then and there maiming him the said last mentioned slave Josiah contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”
    The case was submitted to a jury under the direction of Judge Walker. It appeared that Worley, a man somewhat advanced in life, a resident of the county of Giles, with a family consisting of a wife, one son and two single daughters, was the owner of Josiah, a negro man slave about the age of twenty one; that Josiah was turbulent, insolent, and ungovernable; that he was much absent from home at night, was lewd, that he kept other slaves in alarm from his threats, and frequently ranaway from his master. It- appears that in May he ranaway; that on Saturday in that month the female part of Worley’s family left home; that on Sunday, Josiah was tied and laid on the floor and castrated by Worley and his son, that two persons came to the house where he was lying on the floor, just after he was castrated; that Worley observed, “see to what this fellow has brought himself;” that they examined him and found him castrated; that Worley sent immediately for his family physician, who arrived and dressed the wound, that the slave recovered completely in a very short time. This is the substance of the testimony. The jury found the defendant guilty, and fixed his period of confinement at two years. Judgment was rendered thereupon.
    The defendant appealed.
    
      A. Wright, for the plaintiff in Error.
    
      Attorney General, for the State.
   Totten, J.,

delivered the opinion of the Court.

The prisoner, Gabriel Worley, was convicted in the circuit court of Giles, on a charge of mayhem, committed upon the person of his own slave, Josiah. The indictment avers in substance, that said defendant unlawfully, maliciously and feloniously did strike, with a razor and cut off and disable the organs of generation of the said slave.

The charge is fully sustained by the proof; as to this, there is no question. It appears in the proof, that the slave was of a most wicked and turbulent disposition, and in the constant habit of running away; that he was lewd and incontinent, and in other respects of vei'y bad morals and character. On the othei^hand, it fully appears, that the prisoner was remarkable for his kindness and humanity towards his slaves; and that he had never given the slave Josiah any cause or excuse for his turbulent and vicious conduct, but on the contrary had used mild and reasonable means to reform him; But it also appears, that the act in question,, was done on preparation, wilfully and deliberately.

The able and ingenious defence that has been offered for the prisoner, assumes, in the first place, that in the facts and circumstances of this case, there is an absence of malice, without which the conviction cannot stand.

The nature and character of the act charged as the offence, imply such deliberation and preparation as that, if it be unlawful, the law would infer that it was malicious. If the act were unlawful the malice would be implied; unless such circumstances of present and immediate provocation be shown as would remove the legal presumption of malice. No such circumstances appear in this case. We utterly repudiate the idea of any such power and dominion of the master over the slave, as would authorise him thus to maim his slave for the purpose of his moral reform. Such doctrine would violate the moral sense and humanity of the present age. We are of opinion that the act was unlawful, and that the malice sufficiently appears, if not in fact, at least by legal imputation.

In the next place it is said, that the case is not within the provisions of the penal code. It provides, that “no person shall unlawfully and maliciously, by cutting or otherwise, cut off or disable the organs of generation of another, or any part thereof.” Act 1829, ch. 23; sec. 55.

This code is not applicable to offences committed by slaves, but it does not follow, that offences committed by white persons, upon the persons of slaves, shall not be punishable under this code. We think it does apply to such offen-ces; and that a white person may be indicted and convicted under this code for murder, mayhem or manslaughter, committed upon the person of a slave. We see no reason why this should not be so. The slave is to be regarded as a reasonable creature in being, in the sense of the code, and as a person upon whom the offence before stated may be committed. We consider that this view of the subject not only accords with the reason and humanity of the law, but with the obvious intention of the code in question.

In the last place, some exception was suggested to the form of the indeictment, because it does not negative the proviso in the said 55th section, as to defence and malice. But the indictment avers, that the offence was committed wilfully, unlawfully and maliciously, without which elements the offence is not defined, and does not exist. This averment is a sufficient answer to the exception.

We think, therefore, that there is no error in the record, and that, notwithstanding many circumstances of mitigation, the conviction must necessarily be confirmed-

judgment affirmed.  