Opinion
(Spring Riding, 1798.)
If a free servant refuses to obey the commands of his master, and the master endeavor to exact obedience by force, and the servant in such case offers to resist by force, and the master kills, it is not murder, nor even manslaughter, but only justifiable homicide; much more is it justifiable if a slave actually uses force and combats with the master, or offers to do so.
INDICTMENT for the murder of a negro man named Lewis, the property of Smith, not guilty pleaded, and the trial now came on.
In his charge to the jury. The nature of the evidence is such as makes it necessary, you should have clear ideas respecting the requisites to constitute several denominations of homicide, that is to say, justifiable homicide, manslaughter, and murder; for upon this evidence it has been contended for the State that the offense of the prisoner amounts to murder, by the counsel for the prisoner, that it is but manslaughter at most, if not justifiable homicide.
So far as the evidence can relate to these offenses, justifiable homicide may be defined thus: Where the person killed attempts to kill the slayer, and he kills in his own defense, it is justifiable.
Manslaughter is where some great provocation is given, that is calculated to excite the resentment of a reasonable man to such a degree as to take away the proper exercise of his reason, and he kills the aggressor; as if the aggressor spits in his face, pulls his nose, kicks him, or the like, or where blows pass. In all these cases the blood is heated and the passions roused or excited; and the killing under such circumstances is attributed to human frailty, and not to a wickedness of heart.
Murder is where the homicide is with malice aforethought, which means not what is commonly understood, but a doing the act under such circumstances as shows the heart to be exceedingly malignant and cruel, above what is accordingly found amongst mankind; and the wickedness of heart is collected either from the express words and conduct of the party or from the manner in which the deed is done — in the first instance, by threatening expressions, former grudge, or schemes to do him mischief, as by lying in wait for him and the like; in the latter instance, by the excessiveness and punishment or dangerous weapon, or means made use of to punish; as if for a slight offense, which deserved only moderate correction, any man should take up his servant and beat him so excessively as to cause his death; if in such a case for such an offense, he should beat out his brains with an axe, shoot him with a gun, or kill him with a sword; from all these circumstances it is allowed (55) that the heart is exceedingly depraved and cruel, and that the killing has not proceeded from the frailty of human nature, and therefore the offense is deemed murder.
This is the law with respect to a freeman who is killed, but with respect to a slave it is somewhat different, for if a free servant refuses to obey the commands of his master, and the master endeavor to exact obedience by force, and the servant offers to resist by force in such a case, and the master kills, it is not murder, nor even manslaughter, but justifiable; much more is it justifiable if the slave actually uses force and combats with the master.
If, therefore, you shall be of opinion, upon examining the evidence, that the deceased actually attempted to kill the prisoner, who was a temporary master, having hired him for a year, and that the prisoner killed in his own defense, he is justifiable; if you find the deceased actually used force and was resisting by force when he was killed, the prisoner is justifiable; or if he offered to resist by force when he was killed, the prisoner is justifiable. If none of these circumstances are to be found in the case, and you are of opinion that the killing with the pistol was with malice aforethought, as before explained, then the prisoner is guilty of murder.
Verdict of not guilty.
NOTE — See S. v. River, post 79; S. v. Tackett, 8 N.C. 217; S. v. Hale, 9 N.C. 582; S. v. Jarrott, 23 N.C. 76.