
    
      The State vs. William Harlan.
    
    In an indictment under the Act of 1843, for unlawfully whipping a slave, without sufficient provocation, the jury are the proper judges, whether the provocation was sufficient to excuse the whipping inflicted.
    Such an indictment alleged the slave to be the property of Mrs. S: the proof was that the slave was generally called Mrs. S.’s; that she had had possession of him with the consent of the legal owner, and that, in the exercise of full control over him, she had hired him to a third person: Held, that he was sufficiently described as her property.
    
      Before O’Neall, J. at Union, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows:
    “ The defendant was indicted, under the Act of the Legislature, for unlawfully whipping a slave, the property of Mrs. Sarah Smith. It appears that she was in the possession of the slave, and had hired him to Wilson P. Gee, for the year in which the beating occurred. By the will of her husband, who was the owner of the slave, he, with others, were bequeathed to the executors, for the benefit of his wife and children. They left the slaves with the cestui que trusts. I thought, and so ruled, that this was enough to support'the allegation of property in the indictment.
    “ The defendant whipped the slave, giving him between two and three hundred stripes; “ he was whipped from the calves of his legs to his shoulders.” He had a pass. The defendant, with Monroe Bogan, found the slave in the road, near Churchill Gibbs’ dwelling house, where he had a wife, and took him about four hundred yards, and inflicted the whipping.
    “ It appeared from the proof, that the slave had gone to the house of a Mr. Fant, in his absence to Columbia, in the night time; that his wife, the defendant’s sister, had sent a white man, who was picking out cotton for her husband, to the kitchen, to order him (the slave) ofF. He accordingly obeyed, and went off hooping and hallooing, and calling his dogs. After bed time, he returned, stopped' in the lane opposite to the house, hallooed, altered his voice, and pretended to be lost; enquired the way for Churchill Gibbs’, which was in a short distance, and he knew the road perfectly well. This alarmed Mrs. Fant, and she ordered him off, and sent out George Tucker to send him off. He accordingly did so, and threatened to shoot him, and the negro left.
    “ Mrs. Fant told these circumstances to the defendant; told him to whip the negro, and gave him the whip — “ a little India rubber whip.”
    
    “ The negro’s character as to honesty was proved not to be good; but he was uniformly pronounced to be a submissive negro.
    
    “ There was some contrariety of proof as to the character of the whipping. Jasper Gibbs, Wilson P. Gee, Churchill Gibbs, and Hampton Weeks, thought it a very severe one. Jesse Estes, Monroe Bogan, Mr. Briggs, and Sam. Sumner, thought it a light whipping.
    “ The case went to the jury, who were told that the whipping of the negro was without legal authority. No one had the right to whip the slave of another, unless the law authorized it to be done. That in this case, if the proof satisfied them that the defendant had reasonable provocation, by word or deed, it might excuse him. That to solve this question, they must, as slave owners, put themselves in the defendant’s place, and if then they could say, they would have done as he did, they might acquit the defendant.
    “ They were told, if the whipping was unreasonable, totally disproportioned to the offence, then I thought the defendant would be guilty.
    “ The jury were, however, left to pass upon the facts. They very properly convicted the defendant.”
    The defendant appealed, on the following grounds, viz :
    1. Because the negro man, Mingo, charged to have been whipped by the defendant, is not the property of Mrs. Sarah Smith, as laid in the indictment.
    2. Because the Court charged the jury, that the defendant unlawfully whipped the said negro, by which the jury were led to convict the defendant.
    3. Because the Court charged the jury, that if the whipping was unreasonable, the defendant ought to be found guilty.
    4. Because there was sufficient provocation, on the part of said negro, to justify the defendant in whipping him.
    
      Herndon, for appellant.
    
      Dawkins, solicitor, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

“ If any person shall unlawfully whip or beat any slave, not under his or her charge, without sufficient provocation by word or act,” such person, after conviction, upon indictment, may be punished by fine or imprisonment, under the Act of 1841. (11 Stat. 155).

The beating of another’s slave without provocation may be justifiable; as for instance, by a patrol, or a constable executing a sentence. The beating which falls within the Act must be unjustifiable, and that is expressed by the word “ unlawfully.” It must moreover be without the excuse of sufficient provocation. The provocation, which might have excused moderate chastisement, may not be sufficient to exempt from punishment the infliction of extreme torture. A reasonable proportion between the whipping and the provocation is implied by the word “ sufficient and of this proportion there can be no standard but the opinion of the jury, formed with just regard to the usages of the community and the circumstances of the particular case.

The indictment must shew that the beating was inflicted upon a slave, and one not under the charge of the defendant. What slave it was, it is important to shew only for the purpose of particularizing the charge, so as to enable the defendant to prepare his defence understandingly, and to plead the result of the trial in bar of another prosecution. The owner’s name is only part of the description of the slave. Seeing, in this case, that the slave was generally called Mrs. Smith’s ; that she had had possession of him with the consent of the legal owner; and that, in the exercise of full control over him, she had committed him on hire to a bailee, who was responsible to her, we think there was no material misdescription in Styling him her property.

The Court is, then, satisfied with the instructions which were given to the jury, and perceives no sufficient ground for disturbing the verdict.

Motion dismissed.

O’Neall, Evans, Frost, Withers and Whitner, JJ. concurred.

Motion dismissed.  