
    STATE v. NEGRO POMPEY.
    Court of Quarter Sessions. Kent.
    December 1, 1798.
    
      Rodney’s Notes.
    
    
      Vining assigned by Court as counsel for prisoner.
    
      Ridgely, Attorney General.
    You will, gentlemen, according to the evidence adduced to you find the prisoner either gtiálty of murder or manslaughter.
    
      Benedict Anderson, sworn. Myself and Bailey had gone to Barthew and Sons July 4, 1798, to a frolic; were returning home; had got about half a mile. Pompey came across the field after us. He kept along; I left Bailey and overtook Pompey. Bailey came on after us. We got over the fence and stopped for Bailey. He then asked Pompey why he did not stay longer. He said they would not pay him for playing. Bailey said he would pay him, and with that Bailey seized Pompey as if to wrestle, and Pompey took hold of him and they scuffled and fell both together. I pulled Bailey off after he had been on Pompey some time. Bailey then was for fighting and set down; pulled off his shoes six or seven yards from Pompey. [They] were both in liquor or drunk. Pompey said he would not pull his off, but buckled them tight. Bailey made at him. Pompey asked if he could clear him of the law. Bailey told him twice all law was clear and came towards him to strike. Pompey struck him in the body with his left hand. Bailey struck him also. Pompey struck him, and Bailey [struck] again. Pompey struck him in the side of the head. Bailey fell, Pompey went along from him. I went with him a pace further. Pompey would not go and leave him all night. I told him I’d go to Bailey. He was laying on his back. [I] took his hand [and he] did not speak or move. Pompey came to him after I said he’d killed him and opened his shirt and called him. ' [He] ran his hand in to feel if his heart beat [and] said he did not [feel it.] We went to my father’s, John Anderson’s, and called them. John Anderson, etc., Pompey, and myself went back. Pompey was distressed and cried and bawled etc. They all concluded he was dead [and he] was carried next day to Berry Town. Did not see any bruise at all. [There] were [a] good many at Berry Town besides us. Left there about midnight. Pompey was much distressed. Bailey was subject to drink and wanted to fight very much. I did not want to be with him by myself and tried to overtake Pompey. The blows did not seem to me to be the means of his death. [I] could see no marks at all.
    Captain Anderson. Pompey was excessively grieved when he came in to my yard. He waked me with his cries. Bailey was given to liquor and quarrelsome then, was well enough when sober. We did not find any bruises. Pompey’s character is as good as any of his color. [He] is worth $200. He did not attempt to run away. He cut wheat for me two days before. [He] had like to have died in the field that day before [Bailey’s] death.
    Jabez Caldwell. The Negro is [of] good character.
    Doctor Sykes. A person’s death may happen without external injury, by passion, excitement etc.
    
      
      Ridgely, Attorney General.
    Hale P.C. 459 or 449, it is not necessary that the party killed be the first assailant, but if A and B agree to fight, A fled, and being pursued, turns and kills B, who would otherwise have killed him, it is murder; so also in a duel, if one is killed, it is murder, though they agreed to meet. Post. 297, 261, manslaughter. If two men are in a passion, but have time to cool, or for their judgments to control their passions, it is manslaughter [or] murder. Kel. 27 and 56. 1 Hawk.P.C. 122, 124, where two in cool blood meet to fight (with swords etc. perhaps), [and] one kills the other, it is murder. Str. 773. Lev. 180, I think there is no doubt, gentlemen, the prisoner has been guilty of manslaughter.
    
      Vining.
    
    4 Bl.Comm. 198, what is malice etc. in committing murder. 4 Bl.Comm. 191, manslaughter.
    
      Ridgely.
    
    I have no doubt you will from the evidence find him guilty of manslaughter, which crime by our Act of Assembly entitles him to benefit of clergy or Act of Assembly, and, if he does, the court cannot hang him, but bum in the hand and imprison him six months. The value of the Negro also should be assessed by the jury, by Act of Assembly.
   Chief Justice Bassett.

In this cause the indictment is well drawn etc. From the evidence the prisoner is not guilty of murder. If Thomas Bailey died from any other cause than the blows etc. from prisoner, he is not guilty, but, if otherwise, you must be satisfied Pompey caused his death before you can find him guilty. To convict of manslaughter the party must be engaged in an unlawful act.

Attorney General. I ask the Court to say if two men agree to fight it is unlawful, and if a party comes to his death by means thereof it is manslaughter.

Per Curiam.

It is.

{Quaere how far homicide is justifiable in defendant’s defense.)

Verdict: guilty of manslaughter and assess the value of Pompey at two hundred dollars.  