BONE V STATE. VOL. 18 2. That if he could, the indictment does not allege that the master of the slave refused to compouud and pay the damages sustained, if any, in consequence of the offense charged. The court overruled the motion : the counsel for Bone interposed the plea of not guilty : upon which he was tried by a jury, found guilty, and his pun-109*] *BONE ishment assessed at three hundred lashes : but the court regardiug it as V. excessive, reduced the number of THE STATE. lashes, to seventy-five. Bone was ac-Slaves are indictable for an assault and battery, cordingly sentenced to receive that under the constitution and laws of this State. number of stripes : and judgment ren-Where slaves are guilty of offenses against the dered against his master for the costs persons or property of individuals, less than felony. they are not indictable, under the statute, until of the prosecution, etc. the master has had an opportunity to compound The counsel for Bone moved for a with the injured party, and refuses or neglects to new trial, which was overruled, aud do so. they excepted. They also moved in Where there are exceptions in the enacting clause of a statute, it is necessary to negative them arrest of judgment, on the same grounds in an indictment, in order that the description of taken in the motion to quash the in-the crime may, in all respects, correspond with the dictment : aud the motion being over-statute. And so, in au indictment against a slave ruled, an appeal was taken to this for a crime less than felony, it is necessary to aver that the master had refused to compound with the court. inj ured party. The counsel for the appellant here do not complain of the refusal of the court Appeal from ihe Circuit Court of La-to grant a new trial, but insist . that fayette County. the indictment should have been 110N. THOMAS HUBBARD, Cir- quashed, or the judgment arrested, etc. cuit Judge. 1. The objection that a slave is not Cummins & Garland, for the appel-indictable fcr an assault and battery, is lant. urged upon the ground that slaves are merely personal chattels, and not Jordan, for the State. legally capable of committing crime, 110*] *ENGLISH, C. J. Bone was *etc. There in nothing in this r111 indicted in the Lafayette circuit eourt, objection. It is true, that slaves are for an assault and battery upon Caro-regarded as property : but, for many line Brown, a white woman. The in-purposes, our laws also treat them as dictment is in the form ordinarily used human beings, and as such, they are in the prosecution of white persons for held accountable to the public, for assaults and batteries, except that it criminal conduct. Const. of Ark., art. alleges Bone to be a negro slave, aud 7, sec.1; Dig., ch. 51, part 12, etc., etc. the property of Madison Sims. It would neither comport with the The counsel for the defendant spirit of our laws, nor the sentiments moved to quash the indictment on two of our people, to treat slaves as mere grounds : chattels in all respects. Though inferi-1st. That, by law, a slave could not or in mental and moral endowments be indicted for the offense charged to the white race, aud occupying a sub-against Bone. ordinate position, in the order of Provi-
JULY TERM, 1856. BONE V. STATE. deuce, yet they are rational beings, ture have thought proper to entrust and as such, are not only responsible their punishment, and the compensa-for crimes committed by them, but are tion of the injured party, to the judg-under the protection of the laws; and ment, discretion and sense of justice of whilst:their !nesters may lawfully ex-the master, in the outset: and if he re-ercise over them all necessary and fuses to compound with the injured proper authority to keep them in sub-perty, etc., then the slave is subject to jection and enforce obedience • and sub-indictment, etc. But if the master mission, yet they are amenable to the compound and punish the slave, this laws for any wanton and inhuman will bar an indictment. If he compen-treatment of their slaves: Wharton's sate the injured party, he has no occa-Criminal Law, 403 to 410 and notes. sion to appeal to the courts. The lia-Dennis-v. The State, 5 Ark. 233. Charles bility of the slave to indictment is con-v. The State, 11 Ark. 405. Austin v. tingent upon the refusal of the master State, 14 Ark. 555. McConnell v. Harde-to compound, etc. man, 15 Id. 152. If the injured party desires to bring 2. The second objection to the in-a civil action against the master to re-dictment is founded on the following cover damages for the trespass of his provisions of the statute in relation to slave, he may do so under the provis-the punishment of slaves, etc. ion of section 3 of the act above refer-"In all trespasses and offenses, less red to, without application to, and re-than felony, committed by any slave, fusal by, the master to compound, etc. on the property of another person, the (See Mc(onnell v. Hardeman, 15 Ark. master may compound with the in-151. Ridge v. Featherston, Id. 159.) jured person, and punish his own slave, But if the injured party would punish without the intervention of any legal the slave, and subject the master to trial or proceeding, and the compouna-damages and costs by the means of in-ing and satifection to the person indictment against the sjave, the refusal jured, shall be a bar to any further of the master to compound, etc., is a prosecution. Dig.,ch. 51, plrt 12, sec. 4, pre-requisite to the institution of the p. 379. prosecution. In all cases where the master refuses The refusal of the master to com-to compound, and pay the damages pound, e:tc., rnay be captious : or it sustained by the act of his slave, such may be beseti upon a supposition by slave shall be prosecuted, and punished him that the injured party demands by the proper court having jurisdiction excessive punishment of the slave, or of the offense, and the damages and an exorbitant amount of damages: or costs recovered shall be adjudged the master may agree to compound, against the master." Id. sec. 5. and fail to comply with the terms of By looking over the provisions the agreement, which would be tanta-of the Digest in relation to the mount to a refusal to compound. No punishment of slaves, it may matter what considerations may be seen that for all felonies, etc., influence hint to refuse to compound, 112'1 *they are answerable to the if he has had an opportunity of doing public, aud subject to indictment, trial .so, and does not avail himself of it, the and punistiment, in the courts, uncon-slave becomes subject to indictment ditionally. and the master to the costs, etc., if the But where they are guilty of offenses slave be convicted. against the persons or property of in-But, surely, it is a reasonable proviw-dividuals, less than felony, the Legisla-ion of law, that the mastershould first 28 Rep.
VoL. 18 be applied to, and have au opportu-licensed retailers is contained in the nity of punishing his slave, and enacting clause, aud it is necessary to compensating the injured party aver the want of a license in the in-for the trespass, before he is sub-dictment. See Hensley v. .State, 6 Ark. jected to the inconvenience, loss of labor 252. Wharton's Cr. L. 138. Other 1139 band costs of having the slave illustrations of the two rules may be arrested and taken oft to court to go found in the authorities above cited. through the forms of a legal prosecu-In the case now before us, the very tion. Sec White v. Chanzbers, 2 Bay 75. section which subjects the slave to in-The refusal of the master to com-dictment for an offense against the pound being a pre-requisite to indict-person or property of an individual, ment, the further inquiry arises, less than felony, makes the refusal of whether the refusal should be averred the master to compound with the in-in the indictment, or whether the mat-jured party, etc., a pre-requisite to the ter must come from the defense by ind ictmen t. way of plea. °We think, therefore, that the [114 When a statute contains provisos refusal of the master to compound and exceptions in distinct clauses, it is should be stated in the indictment. not necessary to state in the indict-According to the testimony of Mrs. ment, that the defendant does not Brown, the conduct of Bone toward come within the exceptions, or to her was rude and insolent, aud he no negative the provisions it contains. doubt deserved to he flogged for it, but But, on the contrary, if the exceptions it was the duty of her, or her husband, themselves are stated in the enacting or some one acting in her behalf to com-clause, it will be necessary to negative plain first to tlie master, and give him them in order that the description of an opportunity of .compounding, etc., the crime may, in all respects, corre-and of cha q ising his own slave : and if spond with the statute. 1 Chitty's Cr. he had refused, -then the slave was' L. 233. Wharton's Cr. L. 138. Mat-subject to indictment ; and 'the master thews v. State, 2 Yerger 236. Stale v. to the costs, etc. Adams, 6 New Ramp. R. 532. In this case the indictment contains Thus sec. 5, art. 5, part 8, ch. 51, Di-no statement that the master of the gest, p. 370, makes it a penal . offense slave had refused to compound, nor for any person to keep open a store or was it proven on the trial that any ap-dram-shop, etc., or retail goods, etc., plication had been made to hina N for on the Sabbath : and sec. 6 makes that purpose. charity or necessity on the part The judgment of the court below is of the customer, a justification, reversed, and the cause remanded with etc. The exception being a distinct instructions to arrest the judgment, etc. provision, the indictment need only Absent, Hon. Thomas B. Hanly. aver the offense, and the matter of Cited:-23-282; 33-558. justification must come from the defendant. Shover v. Sta le, 10 Ark. R.259.1 Sec. 2, ch. 159, Digest, p.963, declares that no person shall keep a tavern, etc„ for the retail of ardent spirits, etc., unless he shall first obtain a license, eto. Here, the exception in favor of 1. On negativing exceptions in an indictment, see Brittin v. State, 10-301, note 1.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.