
    THE STATE against JOHN WALKER.
    It is the province of a c"s!fof'homi-cn!e to explain the law t* the jury, leaving-to elusive deci-trut^orfklse-hood »f the facts given in evidence.
    THE negro slave in question belonged to John Guy. He ran away on Sunday night, and on Monday about ia J o’clock he Was apprehended at Peter Hairston's, nine m^es distant from Guy's. Within a few minutes aftey the negro was apprehended, Walker, the prisoner, came , , .. . ' , . to the house ot Hairston, and was requested by Hairston to take the negro home. Walker agreed to take him: and Terry, the Overseer of Hairston, tied his arms above efbows to a stick across his back, and in this situation he was delivered to Walker, who was on foot and walked . , . . with the negro. At the distance oi about six miles from Hairston's, in Wall's lane, the negro fell down. Wall came csut from his house : Walker assisted the negro to get up and the negro walked towards the gate : but before he reached the gate, he fell twice, each time falling on his face. The negro asked for water, which was given to him, and he drank more than usual. Walker then asked Wall if he had any spirits ? He said yes, and brought some. Walker took a dram and gave one to the negro. He then requested Wall to give the negro something to eat, the negro saying he had eat but very little for sevtral days— Wall gave him some bread.
    After resting a little time at Wall's gate, Walker started with the negro. It was early in February and the day Very cold, and the sun about one and an half hours high in the evening. Wall was doubtful whether the negro was sick or deceitful ; but did not hear Walker give anv opinion, further than saying to the negro, “ He had come on very well, until he had gotten to Mr. Wall's Lane ; that he had there fallen down, and if he did not go on better, he should be under the necessity of compelling him.” At the distance of six hundred yards or thereabouts from Wall's house, Walker and the negro passed Webster and his son; Walker bad two*untrimmed switches in his hand. Fie was asked by Webster, “ Whom he had there”—he answered, “ A runaiyay, a damned sullen fellow, who would not go along ; and he would kill him, if he was his own, but he did not like to be. hanged for killing a negro.” The negro was walking slow and Webster thought, áppear-ed weak. Having passed W bster a little distance, Walker gave to the negro two stripes with a brushy switch which he had in his hand, and having gone to the distance of an hundred yards or thereabouts, Webster looked back and saw the negro down in the road, and Walker whipping him, he supposes with the switches, which he had in his hand, when he passed him. Webster thought Walker gave the negro an hundred stripes, but he could not speak v/ith any certainty a,s to the number—The negro had on a great coat and those stripes were given whilst he lay o© the ground.
    The negro and VValker were then distant about three hundred yards from Toi/Vshop. Foy heard a noise down the road, and he told' Williams to go and see what was the matter. Williams wenf*and iound the negro standing jri the road and Walker a few yards from him. After some conversation with Walker about the negro, and Walker saying he was a sullen Itilow and had fallen down ancf would not go along, the negro started and walked about fifty yards, when he fell down on his face. As soon as he fell, he turned his head, so as to take his face from the ground ; and Walker having an untrimmed Gum-switch in his hand, came up and applying both hands to the. switch, struck him with it twice, violently, across the lace. The switch was nearly an inch in diameter at the but end. Then taking one end of the stick tied across his back he turned him over and dragged him by the end of the stick about six feet. The negro then said, “Pray, sir, untie, ■me.” Williams advised Walker to untie him : Walker refused. Walker and Williams then assisted the negro to get up, and the negro walked a short distance and fell again on his face. Walker stepped up to him and kicked him on the hinder part of the neck with violence, and im-> mediately kicked him on the side of the head with like violence ; which last kick turned his face from the ground,, so that the dide of the head lay on the ground. Upon, receiving the last kick, the negro appeared to auffer a violent emotion in his countenance and in all his body. Walker then cut the string from one arm and partly cut it from, the other. He requested Williams to untie the string, which Williams did with difficulty, as h.s fingers were benumbed with cold. Walker took the string, put it around the negro’s neck and gave it a jerk, which raised the head a little from the ground and the negro’s under jaw was observed to fall. Williams had a horse and Walker proposed to put the r.-g^o on the horse and take him to th.e. •shop; IVtUiámS at first, objected; but they put up bis breast on the saddle. Having gone about 20 yards, Walker walked round the horse and Williams asked 'him, “ How the negro looked.” Walker answered, “ The scoundrel is holding bis breath.” They prbceeded about 80 yards further and Walker went round the horse, and Williams again asked him, “’How the negro looked ?” Walker answered, “ The rascal is still holding his breath.” They then determined to take him down, and Foy and his son having come up, assisted in taking him to the shop, where he was placed on a plank. Williams thinks the negro never breathed after the second kick aforesaid on the head. Whilst the negro was on the saddle, Williams observed that he thought he was dying: Walket-answered that he was only deceitful.
    
      Williams thought it was about 20 minutes from the time he came up until the negro was untied. That the negro was very weak and that keeping him tied was unnecessary. He thought that a child of seven years old could have managed him.
    
      Walker is a healthy man, aged about sixty years. The negro was a stout fellow aged about twenty one years.
    After placing the negro on a plank in the shop, Walker observed that he believed he was dead ; and immediately went oh to his owner Mr. Guy. He tojd -Guy that his negro was at Fay’s shop, but did not mention to him that the negro was dead.. Guy took irons to put on the negro. And on the way to the shop, Guy observed, that he feared the negro would be gone before they reached the shop : Walker then said, he expected he would not, and that he feared he was dead. He did not inform Guy of the circumstances of his ill-treatment to the negro. Walker remained in the neighborhood until he was arrested.
    The negro died on Monday evening, and on Wednesday an inquest was holdea. Several of the jurors of the inquest were of opinion that, the negro’s neck was dislocaf-ed, and that one of his eyes was destroyed. 'There was a in one of his temples, but whether the skull was* fractured or not, was not known. One of the jurors thought that it wa§". íhere was a Wound across the forehead and some of the witnesses thought it was produced by the stroke of a hickory ; others that it was occasioned by his fall on the ground. •The' upper lip was swelled and some blood oozed from the gurtis. He was stripped and examined, but there was no appearance of any injury on any other part of his body.
    His Honor the Judge charged the jury that the prisoner Was guilty of murder, or guilty of no offence at all. That he did not think it was a manslaughter case. Tht jury founá the prisoner guilty of murder, and a new trial was moved for on behalf of the Prisoner, on the ground that it ought to have been left to the jury to say, Whether the prisoner was guilty of manslaughter or murder. This motion was disallowed and an appeal'was prayed for to the Supreme Court, which was granted, and the following reasoms were filed for the said appeal by the Counsel for the prisoner—vi®. """
    “• That it ought to have been left to the jury to say⅛ Whether the prisoner was guilty of manslaughter or murder: for » <
    
    
      , “ 1st. That in capital cases the jury are to judge of the law and of the facts. 2d. That the Court is not to pronounce an opinion whether the prisoner be guilty of man*slaughter or murder. 3d. That if the’jury believed the prisoner thought the negro was deceitful only, and that was the causé of his falling down, the prisoner had causé of provocation, and if in this provocation he treated the negro with cruelty which occasioned his death, it ought to have been left to the jury to say, Whether death was the probable consequence of this cruelty. And 4th. That the .prisoner had the right to inflict upon the negro such cor-fection as was necessary to make him proceed on the iosSa home : That the law disregards the mode of correction, ánd looks only to the degree of it; and it ought to have been left to the jury to say, Whether the correction given by the prisoner was such that death was or was not its probable consequence.”
    
      Murphey and Norwood for the prisoner.
   Taylor, C.J.

It is the province of the Court to pr&> nounce whether the Judge who tried the cause drew the correct legal conclusion from the facts set forth in this! record, which must have been made up from the evidence given in the cause, and stated to the Jury in the sum* ming up. To me it appears very clear, that the statement of facts shews the prisoner to have been guilty of> murder in point of law ; and as the Judge who tried the cause was of that opinion, he was hound to state it to the Jury ; that if he had left it to them, without instruction, to pronounce whether it was murder or manslaughter, he would have departed essentially from the purpose for which he presided over the trial, viz. to cause the law to be duly administered. The reason given for a new trial, viz. “ that the Court is not to pronounce an Opinion whether the prisoner is guilty of murder or manslaughter,” can only be correct, upon ithe supposition that the Court undertakes to pronounce upon the truth or falsehood of the facts given in evidence. But no such complaint is made in the case ; and the supposition is wholly inadmissible. The charge of the Judge appears tó b’afe corresponded with what Lord Vaughan calls the discreet and lawful assistance of a Judge to a Jury, which is to give them an hypothetical direction : Not by previously having their answer to the fact, and then'declaring the law to control their verdict, but to leave their Conduct free, by instructing them how the law is, if they find the facts.—* This is also conformable to the opinion of the best writers’ on criminal law : “ In every case, where the point turn-⅜1*1 upon the question, whether the homicide was committed wilfully and maliciously, or under circumstances justifying, excusing or alleviating; the matter of fact is the proper and only province of the Jury. But whether upon a supposition of the truth of facts, such homicide be justified, excused or alleviated, must be submitted to the Court; for the construction the law putieth upon facts stated and agreed, or found by a Jury, is in this, as its all ether cases, undoubtedly the proper province of the Court.”

I do not doubt the right of the Jury, affirmed in the first reason, to judge of the law and of the facts’’; but they would often be much at a loss to exercise this right, if they were, not told by the Court how the law is ; And, according to the sentiments of Mr. Justie» Foster, they will, 41 if they are well advised, always find a general, verdict, conformably to such directa,! s.” I take it for granted, as the contrary is not insisted on i- the case, that the Judge proceeded as is usual in other cases ; that he stated to the Jury what the witnesses had testified, and. then told them if they believed the witnesses, the offence established against the prisoner was murder in point of "law; and not manslaughter, or any inferior species of homicide. In this I perfectly concur, and think justice has been done, as far as a Court has any lawful agency in administering the law.

Seawell,

We are all of opinion, that the direct

^.tions of the Judge below, were in accordance with the law arising from the evidence, and that in the manner of delivering them, he neither transcended the act of Assembly, or invaded the province of the Jury ; that,-in short, he confined his charge to the legitimate functions of a Judge, explaining what was the law, if the facts, given in. were true, leaving it to the Jury to determine upon their truth or falsehood.

It has been insisted on for the prisoner, that the Court fhould have slated to the jury, so much of the case from the evidence as would have made it manslaughter, and then informed them, if they disbelieved the other part of the evidence, that then the case would be manslaughter, and not murder. It is true, the Judge might have done so, but in not doing it, surely there was nothing denied the prisoner ; for such a charge would be giving to the State two chances for conviction, whereas according to the course pursued, the Jury were directed to acquit, unless thev believtd all the,, testimony ; and if it was true, no one will doubt the propriety of the verdict : Of this it was the peculiar province of the Jury to judge. They did believe it, and have found accordingly ; and bad the case come up on their finding, we see no possible ground for being dissatisfied with their verdict. The rule for ⅜ new trial, must therefore be discharged-

JThe prisoner was pardoned by Governor Miller.] 
      
      
         Foster 255.
      
     
      
       Lowrie, J. DANIEL, J. & RUFFIN, J. concurred in this opinion.
     