10 Ala. 928 | Ala. | 1847
The question of the right of the prisoner to challenge the grand jury, has been considered in the previous case of Clarissa, and we will therefore proceed to consider the questions presented upon this bill of exceptions.
The statute under which this indictment is framed, declares that every slave “ who shall wilfully maim, put out an eye, or cut, or bite off the lip, ear, or nose of any white person, shall suffer death.”
Although the statute speaks of biting, or cutting off the lip, ear, or nose, it is not to be understood that the offence may not be committed, without, the entire mutilation of one of these members. The object of the statute was to provide against such a wilful mutilation of these members, as would be obvious to a casual observer, and disfigure the person, and it follows necessarily, that the cutting, or biting off a small portion of the ear, which did not disfigure the person, and could only be discovered by close inspection, or examination, when attention was directed to it, would not constitute mayhem under the' statute. The evidence was, that the prisoner bit off a small piece of the upper part, or rim of the ear, and this is entirely consistent with an injury so slight and unimportant, as not to constitute the high offence punished by this
It is further urged by the counsel for the prisoner, that an act to constitute mayhem under the statute, must be done maliciously, Avhich it is insisted is the proper meaning of the term wilfully, employed in the statute.
It is difficult to suppose, that one could bite off the ear of another without intending, and consequently Avithout willing it; but as this word is found in the act, prefixed to the of-fence, and as the criterion by which its character is to be ascertained, it becomes necessary to ascertain its import, considered in the connection in which it is found.
We do not think it probable, that the entire absence of the will, or total unconsciousness of the act, at the time it was done, is what Avas intended by the use of this term, not only because this is highly improbable’, but also because it Avould be impossible for the accused to prove such a justification, if it really existed. That the legislature meant something different from malice is highly probable, because, when providing in the same code, for the punishment of the same offence by white persons, the act to be criminal, must be done with malice aforethought, and this difference of phraseology in speaking of the same offence, can only be explained by the difference of the individuals upon whom the act was to ope-» rate. In the case of a white person, to constitute mayhem, it must be done Avith malice aforethought; in the case of a slave wilfully. Although this is very satisfactory to show, that malice, in the proper legal sense of that term, is not a necessary ingredient in the offence of mayhem, committed by a slave, yet it is impossible to suppose, that it was intended that every mutilation by a slave, of those members of a white person enumerated in the statute, would, under all circifm-
If such an act is intentionally, and unnecessarily committed by a slave, on the person of a white, man, there can be no doubt it is wilfully committed, within the meaning of the statute; but there may doubtless be cases, in which the slave obeying the mere instincts of his nature, and from his impulses as an animal, rather than from the exercise of his will as an intellectual being, might inflict an injury of this description, without its being wilful within the meaning of the statute. Slave though he be, and as such bound to obedience, and forbidden to resist those having lawful authority over him, he is nevertheless a human being, and when engaged in mortal strife, his adversary armed with a deadly weapon, and he defenceless, the law, in compassion to the infirmity of our nature, and to the instinctive dread of death, common alike to the bond and the free, would attribute such a mutilation of the person of a white man to the instinct of self defence, in which the will did not co-operate; unless from the circumstances of the case, it could be inferred, that it was wantonly done; when there can be no doubt it would be wilful, within the meaning of this act.
To hold otherwise, would indeed be to reduce the slave, to a level with the brute creation.
In discussing this important and delicate question, which is surrounded on all sides by embarrassment, and difficulty, we have confined ourselves te the application of the facts of the case before us, to the statute under which the indictment is found. That the legislature did not mean, that every mayhem enumerated in the statute, should be punished capitally, without regard to the attending circumstancos, is we think self-evident; and that it was not intended by the term wilful, to exclude those acts only, which were purely accidental, and without blame of any kind, appears to be equally certain ; and there appears to us to be no middle ground, between the construction we have placed upon it, or making it wholly inoperative.
The charge moved for, that if the prisoner was so sick as to be unable to work, he was not bound to obey the command,
For the error, as herein set forth, the judgment must be reversed, and the cause remanded for another trial.