
    The State vs. Guy Raines.
    On an indictment for kilting a slave “ in sudden heat and passion” contrary to the act of assembly, the jury found a verdict of '• guilty of manslaughter.” Upon which the court held judgment could not be passed.
    The crime, by act ofassembly, of killing a slave in sudden heut and passion, is a different offence from the common law crime oí manslaughter.
    
    ?t is not enough to say, in an indictment, thata crime has been committed, in the words of the act; but it is also necessary to specify on the face of the indictment the criminal nature and degree of the offence, and also the particular facts and circumstances which render the defendant guilty of the offence,
    The act of 1321, rendering it murder to kill a slave, does not take away from the prisoner, if he be master or overseer, in whose possession the slave was killed, the right of exculpating himself by his own oath. And the • fact of a third person coming up at the moment of the death of the slave, after the wounds were given, will not alter tile case.
    The indictment in this case contained two counts, the first for murdering a slave. The 2nd. for killing a slavein sudden heat and passion, contrary to the act, ¡kc. The following is a copy, viz:
    State oe South Carolina, > rp Fairfield bislrict. J 1 °'WlU
    
    At a court of sessions begun to be holden in and for the district of Fairfield, in the State of South Carolina, at Fairfield court house, in the district and State aforesaid, on the. second Monday after the fourth Monday in March, in the, year of our Lord, one thousand eight hundred and twenty-six.
    The jurors of and for the district of Fairfield aforesaid, in the State of South Carolina aforesaid that is to say: James Owens, foreman Ssc.
    upon their oaths and affirmation present, that Guy Raines, late of the district and State aforesaid, labourer, on the sixth day of March in the year of our Lord, one thousand eight hundred and twenty-six, with force and arms, at Fairfield court house in the district and State aforesaid, in and upon a certain negro man slave called Isaac, the property of William Gray, then and there being, then and there did make an assault, and him the said negro man slave did wilfully, maliciously and deliberately murder, contrary to the act of the general assembly of this State in such case made and provided, and against the peace and dignity of the same State aforesaid.
    And the jurors aforesaid, upon their oaths and affirmations aforesaid, do further present, that he the said Guy Raines, on the said sixth day of March in the year of our Lord one thousand eight hundred and twenty-six, with force and arms at Fairfield court house in the district and State aforesaid, in and upon a certain negro man slave called Isaac, the property of the said William Gray, then and there being, did make an assault, and him the said negro man slave, on sudden heat and passion, then and there did kill, contrary to the act of the general assembly of the said State in such case made and provided, against the peace and dignity of the same State aforesaid. JPeareson, Sol.
    “ Guilty of manslaughter.”
    
      J. G. Ellison, foreman.”
    In challenging the jurors, the prisoner was not permitted by the court to consult his counsel.
    On the trial of the case, the declarations of the prisoner were given in evidence; from which it appeared,
    That the prisoner was taking the negro from Chester jail to Columbia, at the request of his owner, William Gray,
    That the. negro had broken open Hall’s store, in Columbia, and stolen money, and had run away,
    That he was a very bad negro, and had been a runaway, and had been shot, but not killed, and had the shot still in him;
    That the negro turned sullen and refused to go further, and the prisoner whipped him to make him go along, and for no other purpose, and gave him, as the prisoner said, five hundred 1 hes.
    ThaV when the prisoner found he could not make the negro go along by whipping, he tied the negro’s legs to prevent him from going off until tbe prisoner could go and get assistance.
    That the prisoner requested two women, at the first house down-the road, to go back to the negro and prevent any one from cutting him loose, until he, the prisoner, should go on down the road to one Young’s for further assistance.
    That the prisoner had permitted the negro to ride his horse a part of the way.
    The witnesses on the part of the state testified,
    That the negro died about eight minutes after the two women reached him, and some time before the prisoner with two other men returned.
    That the negro bled at the nose, mouth and ears, though there was no bruise or mark of a blow about the head or body.
    That the negro appeared to have been severely whipped below the small of the back, and the blood appeared in several places, which seemed to have been touched by the ends of the switches.
    That several small switches and two or three larger ones, lay near, which appeared to have been much worn, also a stick with a small end and a larger end, seemed to have been used.
    The witnesses on the part of the prisoner testified,
    That the negro was a notorious runaway, thief, and house breaker; a sullen, perverse, desperate, dangerous villain; that he had been shot twice, had a load of buckshot in him, and had been shot at several times; that he was a strong, powerful fellow, and when runaway was dreaded by those acquainted with his strength and character; that he had been frequently tried and whipped for his villainy; that he had broke open Hall’s store, in his dwelling house, in Columbia, at night, and stolen money and goods therefrom; that he had received from' his master, William Gray, (an Englishman !) upwards of a thousand lashes on that account, six or seven weeks before his death; and had been sent off from Colum-bi:¡, to prevent his being hung; that he shortly afterwards' run away and was caught and lodged in Chester jail. That the pri-.o íer having business in Chester District, the owner of the negro requested the prisoner to' bring the negro down to Columbia, and at the same time cautioned the prisoner to have the negro well ironed and to guard against his violence and villainy.
    '¡'hat the prisoner was a humane, peaceable man, and a man of good character.
    The oath of the prisoner was then offered. to exculpate himself under the act of 1740, which the court refused, on the grounds that other persons were present when the negro' actually died, and that this privilege did not extend to cases under the act of 1821, under which the court considered the prisoner indicted.
    The court charged the jury that the prisoner was not guilty of murder; but that he had given the negro undue correction and had killed the negro, and was guilty under the second count in the indictment. That a person having charge of a refractory slave has not a right to carry on moderate Chastisement until the slave shall submit; that the prisoner had not the right to whip the negro moderately until he' should consent to go along; that taking the negro under a charge of burglary, tr.o’ guilty thereof, to justice was an immaterial circumstance, and did not excuse the prisoner.
    The jury found the prisoner “ guilty of manslaughter* but recommended him to mercy.
    The prisoner moved the court in arrest of judgment upon the following grounds:
    1. Because the finding of the jury was for a different offence from that set forth in either count of the indictment.
    2. Because it does not appear from the indictment whether the prisoner was indicted under the act of 1740 or ’1821, or whether sentence was to be passed under the formed ■or latter act, and each count concludes against the act, &sc.-
    
      3. Because manslaughter is a common law offence, and no act of the assembly declares the killing of a slave under any circumstances, manslaughter.
    4. Because the indictment does not set forth the manner of the negro’s death, nor the means by which it was effected.
    5. Because the indictment does not set forth or allege aiiy blow or mortal wound in any part of the body, by means of which the negro’s death ensued
    G. Because the indictment does not allege, that the act of the prisoner by which the negro’s death ensued was done illegally or feloniously.
    And a motion was made for a new trial on the following grounds:
    1. Because the court erred in deciding that the prisoner should challenge jurors without the aid of his counsel.
    
      2. Because the court erred in rejecting the oath ola-test} mony of the prisoner.
    4. Because the charge by the court to the jury was erroneous, except acquitting .the prisoner of murder.
    4. Because the finding of the jury was contrary to the evidence, and the law in relation thereto.
    ' Job Johnston, for the motion as to the fourth, fifth, and sixth grounds in arrest of judgment, observed, that it did not appear by he indictment in what manner and by what means the deceased came to his death. This was necessary.
    Í. In order to identify the crime.
    
      2. In order to enable the prisoner to plead an acquittal or previous conviction.
    3. To enable the prisoner to prepare for his defence, and that he may know what may be proved against him. (1 Starkie Cr. Plead. 97.)
    
    4. To enable the court, from a view of the record, to ascertain what crime had been committed.
    5. To circumscribe the limits of proof, if the legislature has described the particular mode of committing the ci'i'.fc. ft Russell on CV. 677. East. Hawkins.)
    
    b. Because the indictment does not state the killing to have been by blows, or bruises, or that the wound was mortal. ■ 1 East Vr. E. 42. 1 Eeach 96. 1 Hale 186.)
    
    7. The killing must be stated to have been felonious. (1 East £45. j
    The same particularity is required in describing a statutory offence as in that of an offence at common law. ( Star/cic C.L. 235, 237. 1 < kitty, Cr. L 275.)
    
    Where a character is charged, as for being a common scold or a common barrator, no such particularity is required as where a particular act is charged.
    ■ his is a statutory offence not corresponding with the finding of the jury. (State vs. Spergin, 1 A-’ Cord 452.)
    
    If the crime described in the act be technically manslaughter, all the particularity, above contended for, is necessary, if not, he relied on the case of Spergin.
    
    The judge refused the prisoner tlie benefit of his. oath because he was indicted under the act of 1821, and because in this particular case, the slave died in the presence of white people, although not wounded in the presence of white persons.
    He contended the policy of the law was to prohibit'private crueltj, and the owner or possessor of the slave is presumed to be the murderer} and to meet so unusual a provision of law, one so contrary to the common law, it was necessary to make a provision that the defendant may exculpate himself by his own oath.
    The act of 1821, does not repeal that part of the act of 1740, which provides as to the evidence of the offence} fos the act of 1740, has two general provisions.
    1. As to the punishment of the crime, and
    ■2. As to the evidence of the crime.
    And the act of 1821, does not affect the act of 1740 as regards the evidence: though the prisoner be indicted under the act of 1821, yet such indictment can have no other object than to higlitenthe punishment, as provided by the art of IS21. But the act of 1740 having provided rules of evidence for all cases, and these rules not having been changed or repealed by the act of 1821, of course then the rules of evidence must be the same, whether the indictment be under the act of 1740, or 1821.
    Here it is said the act of 1740 does not apply because some white person was present. But was that the fact. The coming up of some person to the slave, who was dying alone, cannot be such a presence of white persons at the commission of the crime, as will take from the prisoner the right of exculpating himself upon his own oath.
    
      Peareson, Sol. contra.
    But one case, State vs. Petty, 1 State Rep. 69, which’is at all in point. No words more proper for the description of a crime than the very words oí the statute. The statute does not use the words feloneous, but li wickedly &c. and in sudden heat and passion did kill.” in none of the precedents had he found the weapon or manner of killing stated: and precedents are often the best expounder of the laws. The act defined what it meant by manslaughter, and the verdict of manslaughter means such as is described by the statute. No particular words are necessary for the verdict of the jury, it is sufficient if it be certain and iu • telligible.
    If the verdict be in wrong language, may not the sáme be corrected from the minutes of the judge? (T Chitty’s Crim. Law. 645-6.)
    
    Thought but one ground questionable; as to the admission of the prisoners oath. The act of 1740 (2 Brev. 242,) provides punishments infinitely short of those of 1821, and the temptations of perjury are much greater; it is to save life under the act of 1821. And in passing that act the policy of the law was so entirely changed, that it cannot be considered that the legislature intended any thing short of an entire new modification of the law, and when the killing of a .slave, maliciously, was made murder by the act of 1821, the legislature can well be considered as providing this encreased punishment upon the common rules ofevidence at common law, of murder, and never i ntendinglogive the prisoner the right of swearing. For as the presumption was not to be taken against him, so he was not to be allowed a benefit only intend-, ed to meet such extraordinary presumption of guilt.
    The ruLis not true that all statutes should be construed pari materia. Cited a case ora the insolvent debtors act.
    
      Gregg, in reply.
    In arrest of judgment, said he would make but a few desultory? remarks. H this had been thought an indictment at common law, the fourth, fifth aud mth grounds, must be fatal. For he cited many cases to shew thatitwas necessary to set forth the manner aud circumstances of killing, the wouud, weapon, 8¿c.
    Then the question arises, does the indictment under the statute do away with those common law? requisites? Though the indictment be in the words of the statute, yet, the words of the statute must be stated with these forms of the common, law. It must be alleged feloniously. It does not appear upon what countthe jury found their verdict.
    For anew trial, he observed:
    The act of 1821, is only to increase the punishment, evidently alluding to act of 1740. As to the negro dying in presence of some other person, he thought it could not vary the law. He thought the person was entitled to be sworn under the act of 1740, although the slave died in presence of White persons. What was he indicted for? For what he did. What was that? The allegation is that he beat the negro until he “ suffered in life.”
   ConoocK, J.

The grounds taken in behalf of the prisoner may be included in the following in the arrest of judgment:

1st. Because the indictment is defective inasmuch as it does not state the manner of the death, &c.

2nd. Because he has been found guilty of the offence of manslaughter, to which he is not subject by the laws of the State;

And for a new trial, because be was not permitted to exculpate himself by his own oath, as he had a right to do by the act of 1740.

By this act negroes were declared forever within this state to be chattels personal in the hands of their owner» and possessors and their executors, administrators and assigns, to all intents, constructions and purposes whatsoever. But when this absolute dominion was given to the owners and possessors, it became necessary to place some restrictions upon the exercise of it. It was, therefore, enacted, that if any person or persons, whatsoever, shall wilfully murder his own slave or the slave of any other person, every such .person shall, upon conviction thereof, forfeit and pay the sum of seven hundred pounds current money, and shall be rendered . nd i hereby declared altogether and for ever incapable of holding, exercising, enjoying or receiving the profits of any office, place or employment, civil or military, within this province, and in case he is not able to pay, shall be imprisoned, &c. And further, that ii any person shall, on asuddenheat and passion or by undue correction, kill ins own slave, or the slave of any' other person, he shall foifeil the sum of three hundred and fifty pounds current money. And by the 39th section, it is declared, that if any slave shall suffer in life, limb or member or shall be maimed, beaten or abused, contrary to the direc-lions and true intent and meaning of this act. when no white person shall be present, or being present shall neglect or refuse to give evidence or be examined upon oath concerning the same, in every such case, the owner or other person who shall have the care and government of such slave shall be deemed, taken, reputed and adjuged to be guilty of such offence, and shall be proceeded against accordingly, without further proof; unless such owner or other person as aforesaid can make the contrary appear by good and sufficient i vidence, or shall by his own oath clear and exculpate himself; which oatii .every court where such offence shall be tried is hereby empower-e^l to administer and to acquitthe offender accordingly, if clear proof of the offence be not made by two witnesses at least, any Jaw usage or custom to the contrary notwithstanding.

By which enactments it is obvious, that it became necessary, and was the intention of the legislature, to make ara-dical alteration in the common law doctrine of homicide, so ■far as relate to owners or employers and their slaves. This act remained in full force, and was repeatedly acted on until the year 1821, when the legislature declared by their act, entitled, An act to increase the punishment inflicted on persons convicted of murdering any slave, and for other purposes therein mentioned, That if any person, from and after the passing of thisact, shall wilfully, maliciously and deliberately murder any slave within this State, such person, on conviction shall suffer death without the benefit of clergy, and that if any person shall kill any slave in sudden heat and passion such person on conviction, shall be fined in a sum not exceeding five hundred dollars, and be imprisoned not exceeding six months. The professed object in this last act was to increase the punishment as to murder and to omit the killing by undue correction. Under the old act it is clear that the common law kind ofhomicide, technically called manslaughter, was intended to be abolished; for the citizen is only made amenable for three kinds ofkilling viz: murder, killing in sudden heat and passion, or by undue correction. Now although killing on a sudden heat and passion is manslaughter, yet manslaughter also embraces a killing by any unlawful blovv or blows. But as it was lawful to give blows the owner shall not be adjudged guilty, except he give them in such number and to such extent as to amount to undue correction: and in such case it is clear that they meant not to apply the common law doctrine of manslaughter, because the punishment, of that offence is branding in the hand and imprisonment and they have imposed a fine only; and the practice has been in accordance with this view of the subject; for no man has ever been adjudged guilty of manslaughter for killing a negro. The purpose of the last act, it is presumed, in this par- • ticular, was the same as that of the legislature of 1740. If th*ey had uot intended that the offence of killing on sudden heat and passion should have been considered iu a different light from that in which the common law views it, when occurring between men standing on equal footing in society, it would have been as easy for them to have used the technical word manslaughter, in the second section, as to have used the technical word murder in the first. No judgment then can be pronounced on this verdict.

That the indictment is also defective, I think is equally clear. There is an obvious difference between creating a new offence and altering the punishment of one known to the law. Now, supposing it to be sufficient to charge the new of-fence in the indictment in the words of the act, there can be. no ground on which to say that the old offence must not be described as having been committed with all the particularity of the common law. The word murder is a technical word, the offence is well known to the common law. When the legislature use it, therefore, it is to receive its technical construction; as to that then the offence should have been charged in the indictment as at common law and all the essential parts of the common law indictment be pursued.

But, even as to the offence stated in the second count, the indictment is defective. Suppose it to be a new offence. It is as necessary in the case of a new offence as in the case of an old one, that a man should know what lie is charged with and how he is to defend himself. It is evident that the law has been mistaken by the solicitor, in hissupposingthat itwas enough to say an offence has been committed, in the words of the act. Wbat'is the object of the indictment? What are the reasons, on the ground of which-the-law exacts a certain particular description of the offence? From these it is evident that we can ascertain the true test by which the sufficiency of any criminal charge is to be ascertained.

It is necessary then to specify on the face of the indict-offlentthe criminal nature anddegree of the offence, which are conclusions of law from the facts, and also the particular facts and circumstances which render the defendant guilty of that offence.

1st. In order to identify the charge; least the grand jury should find a bill for one offence, and the defendant be put upon his trial in chitf for another, without authority.

'2nd. That the defendants conviction or acquital may enure to his subsequent protection, should he be again questioned on the same grounds.

3rd. To warrant the court in granting or refusing any particular right or indulgence which the defendant claims as incident to the nature of the case.

4th. To enable the defendant to prepare for his defence in particular cases, and to plead in all, or, if he prefer it. to submit to the court by demurrer whether the facts alleged, supposing them to be true, so support the conclusion in law ag to render .it necessary for him to make any answer to the charge; and,

5lh. Finally and chiefly to enable the court, looking at the record alter conviction, to decide whether the facts charged are sufficient to support a conviction of a particular crime and to warrant their judgment; and also in some instances to guide them in the infliction of a proportionate measure of punishment upon the offender.

Now this certainty consists of two parts. The matter' tobe charged and the manner of charging it. Hence has originated the error as to the law. The matter is the crime, and this io a new.offence by statute must be in the language of the statute and with all that is necessary to constitute the, crime. (Hawkins 73-77. Chitty 1.)

But the manner is as necessary in the one case as in the other, and Star/cic, in page 23b, of his excellent treatise on criminal proceedings, says: it may therefore be assumed that there is no difference between common law and statutable offences as far as negroes. The general rules ac— curding to which the expanded description of the offence'. should be expressed on the record, except Indeed in those instances (and the exception confirms the observation) where the legislature has peremtorily directed that some general form of words shall be used. And this confirmed by Chitty, 1 vol. page 275, and by Hawkins, 2 vol. ch. 25. sect. 99 and 111. Although they all admit that it has heea held otherwise by lord Holt, whose authority however on the subject cannot be put in the scale against the satisfactory reasoning on the subject by the authors I have referred to, and the repeated decisions made since his day.

From this view which has been taken of the subject it will be perceived that it is necessary that the indictment should conclude against the statutes in such case made and provided &c. for the first statute created the offence and the second has added to the punishment. (Starkie 256. Hawk, ch. 25. sect. 117. f

I come now to the last ground, which is urged asa ground of new trial, and I am free to confess that it is by ndj means clear of difficulty. Two objections to the claim of th^ prisoner have presented themselves. One arising from the! language of the act, and the other from the difference ancf degree of the punishment imposed by the last act. The firs| act of 1740, in which the clause is contained under which the prisoner claims the benefit of his oath, is in these words? “ If any slave shall suffer in life,' limb or member, or shall be maimed, beaten or abused contrary to the directions and true intent and meaning of this act.” Now it is said the negro, in the case before us, was not beaten contrary to that act but contrary to the act of 1821, and the privilege of his own oath is only given to one who violates that act. The answer to this is, that the act of 1740 is a system of law adapted to the policy of the country in relation to slaves, and therefore any partial alterations are not to be considered as meant to repeal those provisions which arise out of this state of things.

The clause is general in its operation, and must of course remain. How can you limit its operation without legislative provision. If it be said it may apply to the second charge in the indictment and not to the first, when a prisoner • is indicted under both clauses of the act (as he mustnecessa--rily be) we cannot ascertain the degree of guilt until the evidence is. heard. Therefore the evidence in defence must be heard to determine whether it is admissible. .

But the more serious objection is that in a case where a man’s life is at stake, the inducement to perjury is irresistible, and the'privilege destroys the act; although this may be frequently the effect, yet we are not at liberty to say that the legislature meant to take away this privilege, for its necessity or propriety originated in a state of things not materially changed since 1740. The slave and his owner or possessor is perhaps as much secluded from the views of other white persons now as formerly; he is still even now for clays and weeks, in many parts of the country, left entirely with the master or overseer, and if in this situation an accidental killing should happen, why not permit the person killing to prove ’how it happened? His being subjected to, a more severe penalty for a murder is no reason why he should not be permitted to shew that he was free from all guilt; and this is what ,the law intends. If the accused goes further he abuses the lav? and adds to his offences; and this is in fact the law wbére orie white man is killed by another out of the view of any person.. If he confess that he caused the death and state the ‘ circumstances and manner of killing, the whole confession is takeB, and if satisfactory, will induce an acquittal.

The particular ground of objection stated by the presiding judge cannot operate, because the mere presénce of a person at the moment of the death does not enable such person to ste te how it occurred. See the State vs. Taylor, 2 M’Cord’s Rep. 483.

Johnston & Gregg, for the motion.

Peareson, Sol. contra;  