
    *The Commonwealth v. Richard Booth.
    Criminal Law — Master Cruelly Beating Own Slave.— Quaere. Can a master be Indicted for beating- bis own slave cruelly and inhumanly, and beyond the bounds of moderation.
    Same — Same — Indictment* — What Indictment Must Show. — An Indictment which charges the Defendant with beating the slave of R. F. (in the common form,) will not support a prosecution against the Defendant for beating the same slave of R. P. during the time he was hired to the Defendant (he being the temporary owner of the slave:) for, the gravamen of the charge being, not the original assault, but tbe want of moderation in the subsequent chastisement, the Indictment ought to shew distinctly the connection of the parties, and that it is the excess of the punishment which is complained of, and not that the right to inflict blows, is questioned.
    , i This was an adjourned Case from the Superior Court of Petersburg. The Defendant was indicted for that he “on the 10th day of Ma'y, 1821, with force and arms at, &c. within, &c. unlawfully and violently did make an assault on a certain negro man slave named Boh, the property of Robert Fenn, then and there in the peace of the Commonwealth being, and him the said negro man slave named Bob, then and there did violently, severely and cruelly beat, bruise, wound and exceedingly ill treat, so that his life was thereby greatly endangered, and that he the said Richard Booth, then and there did other great wrongs, enormities and injuries to and' against the said negro man slave named Bob, the property of the said Robert Fenn, to the grfeat damage óf thé said Robert Fenn, his owner and proprietor, to the evil example of all others in like cases offending, and against the peace’and dignity of the Commonwealth.” At the trial of this Indictment, the jury found a verdict in these words : “We of the jury find the Defendant guilty and assess his fine to sixty dollars, subject to the opinion of the Court upon these questions : Can the Defendant be indicted and punished for the excessive, cruel and inhuman infliction of stripes on the slave Bob, while in his possession,' and under his control as a hired slave, for the space of one month, no permanent injury having resulted to the said slave from such infliction ? — Can the Defendant be punished under the Indictment found in this Case?” The questions arising on this special verdict were adjourned to this Court by the said Superior Court, for its decision on the question, “What judgment shall be rendered on the said verdict ?”
    The Case was argued by the Attorney General, for the Commonwealth, and by May, for the Defendant.
    
      
       See monographic note on “Indictments, Informa-1 < tion's and Presentments” appended to Boyle v. Com., 14 Gratt, 674.
    
   *R. E. PARKER, J.,

delivered the opinion of the Court:

(After stating the Case,) he proceeded thus : The last clause in the special verdict, is understood to refer the following question to the Court. Under an Indictment in the common form for an aggravated assault, upon the slave of Robert Fenn, can the Defendant be found guilty, and punished, upon evidence proving him to have made such assault upon a slave held by himself as an hireling, that is, upon his own slave for the time being ? If this is the question propounded by the jury, and we can give these words no other construction, a majority of the Court, think it ought to be answered in the negative.

The Indictment is in the common form, and will reach all cases where the first assault is unlawful per se, no matter what peculiar circumstances attended the catastrophe. But where the original assault is justified by the relation of master and slave, and the gravamen of the charge is the want of moderation in the subsequent chastisement, we think the Indictment ought to be more special than the one at bar, and ought to state distinctly, the connection of the parties, and to shew that it is the excess of the punishment which is complained of, and not, that the right to punish.at all, is questioned. Tn looking into the forms of Indictment against masters for ill-treating their apprentices, ' we find that these circumstances are set out, and we are not disposed to depart from those forms, especially, where they seem to have reason on their side. The offence of making an unlawful assault upon the slave of another person, however cruel and severe the subsequent battery, is, certainly, not the same offence with making an assault upon one’s own slave, which,in general, becomes unlawful by subsequent excess and inhumanity, and, if this last is intended to be the charge against the Defendant, he ought to have clear notice of it, by the frame of the Indictment.

In the present case, the Defendant sufficiently answered the general charge preferred against him, of cruelly beating Robert Fenn’s slave, by proving that he had himself for the time the ownership of him, which so changed the nature of the offence, as to entitle him to a judgment under this Indictment, and we accordingly answer the ^question proposed, by ordering it to be certified to the Court below, that judgment on the said special verdict, ought to be entered for the Defendant.

In giving this judgment, however, we mean to express no opinion as to the first point submitted by the verdict. That, involves agrave and serious, as well as delicate enquiry into the rights and duties of slaveholders, and the condition of their slaves, which we shall be prepared to enter upon with a due sense of its importance, whenever a proper occasion arises. The present Case is decided without reference to this more interesting question, and is not intended, in any manner, to affect it. 
      
       3 Chitty’s Crown Law, 829.
     