
    The Commonwealth v. Howard.
    June, 1841.
    Indictment — Assault upon Slave — Statute.*—Indictment lies upon the statute of 1823-3, ch. 34, against a free person for wilfully and without lawful authority injuring, by assaulting and beating, the slave of another.
    Case adjourned from the circuit superior court for the county of Henrico and city of Richmond. Howard was indicted upon the statute of 1822-3, ch. 34, Supp. to Rev. Code, ch. 226, p. 280, knowingly and wil-fully and without lawful authority injuring a female negro slave the property of John Hill, by violently and inhumanly assaulting and beating her to the great injury of the slave, and to the great damage of Hill, against the form of the statute in such case made and provided, and against the peace &c. The defendant before pleading moved the court to quash the indictment. Whereupon the court adjourned Ije following questions to this court, for lovelty and difficulty: 1. Whether an indictment will lie against a white man for an assault upon a slave the property of another ? and 2. Whether the indictment in the present case can be sustained, or ought to be quashed ?
    The principal case is cited in Dye v. Com., 7 Gratt. 666.
    
      
      See monographic note on “Indictments, Infor-mations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
   UPSHUR, J.,

delivered the resolution of the court. In answer to the second question, this court is of opinion that the indictment can be sustained, and ought not to be quashed. Whether such an indictment would lie at common law or not, we do not decide, since that question does not necessarily arise oh the record, and is not submitted to us by the circuit superior court. This indictment is founded on the statute of 1822-3, ch. 34, to provide for the more effectual punishment of certain offences, and is a good indictment under that statute, upon the principle decided by this court in The Commonwealth v. Percavil, 4 Leigh 686. This being the opinion of the court on the second question, it is unnecessary to decide the first question adjourned.  