#### THE STATE vs. JARROTT, a slave.

The great distinction between homicide committed with malice, and that committed in a transport of passion, suddenly excited by a grievous provocation, is as steadily to be kept in view, in the trial of a slave charged with the murder of a white man, as in that of a white man charged with the murder of his equal, or of a slave. But the same matters which would be deemed in law a sufficient provocation to free a white man, who has committed a homicide in a moment of passion, from the guilt of murder, will not have the same effect when the party slain is a white man, and the offender a slave: For though among equals, the general rule is, that words are not, but blows are, a sufficient provocation, yet there may be words of reproach so aggravating when uttered by a slave, as to excite in a white man the temporary fury which negatives the charge of malice; and this rule holds without regard to the personal merit or demerit of the white man.

The insolence of a slave will justify a white man in giving him mode, rate chastisement with an ordinary instrument of correction at the moment when the insolent language is used, but it will not authorise an excessive battery, as with a dangerous weapon, nor will it justify an attack upon the slave for even moderate correction, if the insolence be past at the time.

The rule that where parties become suddenly heated, and engage immediately in mortal conflict, fighting upon equal terms, and one kills the other, the homicide is mitigated to manslaughter, applies only to equals, and not to the case of a white man and slave, if the slave kill the white man while fighting urder such circumstances.

An ordinary assault and battery, committed by a white man upon a slave, will not be a sufficient provocation to mitigate a homicide of the former by the latter, from murder to manslaughter; but a battery which endangers the slave’s life will be a sufficient provocation to produce that result. In the cases between these extremes, that is a legal provocation of which it can be pronounced, having due regard to the relative condition of the white man and the slave, and the obligation of the latter to conform his instinct and his passions to his condition of inferiority, that it would provoke well disposed slaves into a violent passion.

Although there he a legal provocation, yet a homicide will be murder, if committed under such circumstances of cruelty as manifest the thoroughly wicked heart. And cruelty, when the facts from which it is to be inferred all distinctly appear, is an inference of law, and, therefore, properly drawn by the court. But where no more is stated than that several blows were struck with a stick of curled hickory' of the ordinary size, and with the larger end thereof, without stating more of the nature of those blows than that one of them was mortal, the facts *77are not so set forth as to leave the question of cruelty as one for legal inference.

If the weapon, with which a homicide was committed, were not of the character called deadly, that is, likely to produce death or greatbodily injury, the homicide would not be murder, although committed without legal provocation. And there are many cases in which the court can distinctly see, from the nature of the instrument used, whether it be of a deadly character or not; and, therefore, need not that the jury should directly find the fact for their information. But where it only appears that the weapon used was a stick ot curled hickory of the ordinary size, and that the slayer struck with the larger end thereof, it falls peculiarly in the province of the jury to ascertain whether such a weapon, so used by the slayer, was likely to produce fatal consequences or not.

The prisoner, a slave, was indicted at Person, on the last circuit, before his honor Judge Dick, for the murder of one Thomas Chatham, a white man. The Solicitor for the State called, as a witness, one John T. Brooks, a white boy, about fourteen years of age, who stated that he went with the deceased, who was eighteen or nineteen years old, to a fish-trap, in the neighborhood, where several slaves were collected, on Saturday night; that the witness and the deceased were the only white persons present; and that they remained there until about two or three hours before day, when Chatham was killed; that the prisoner and one Jack Hughes, a free negro, played cards, and differed about the game, when they called on the deceased to keep the game for them, which he did for some time, until a second difference took place between the parties, and Hughes refused to play longer; that the prisoner had a twelve and a half cent piece of coin, upon a handkerchief, on which they had been playing. — .which fell off among the leaves, when he jerked up the handkerchief; that the prisoner, shortly after, went and looked for the piece of money, where it had dropped; and, not finding it, said that he saw his nine pence walk into a white man’s pocket, and that any white man who would steal a negro’s money, was not too good to unbutton a sheep’s collar; that the prisoner further said that the deceased was raised and had lived on stolen sheep; that the prisoner then changed the deceased with stealing his money, and told him if he did not give it up, he would kill him — and brandished, a stick over the head of the *78deceased; that the prisoner further told the deceased that he had his nine pence in his left jacket pocket; upon which the deceased requested the prisoner to search him; which the latter refuseq t0 ¿0- that the deceased then turned out his pockets, and the prisoner then cursed him, and told him that he had the money in his shoes; upon which the deceased took off his shoes and stockings; that shortly afterwards, some of the company got a light, and, in searching, found the piece of money in the leaves, near where the deceased stood when he turned out his pockets and pulled off his shoes, and six or seven steps from the spot where the prisoner jerked up his handkerchief, as before stated; that the deceased then took a seat near the fire, and the prisoner continued to abuse him, using very indecent and insolent language towards him; that the deceased then asked the witness for his knife, saying that he wished to cut his nails; that the witness handed his knife to the deceased, who then told the prisoner that if he did not hush, he, the deceased, would stick his knife in him; upon which the prisoner drew his stick, and told the deceased to do it if he dared; that the prisoner continued to use insulting language to the deceased, who took up a piece of a fence rail about as long as the witness’s arm, and, having the knife still in his hand, made at the prisoner, and ran him twice around the fire, and then ran him off, and returned, himself, to the fire; that the prisoner soon after returned within ten or eleven steps of the fire, and said something, which the witness did not understand; upon which the deceased took up the piece of rail, and, having the knife still open in his hand,, went towards the prisoner; that the witness then heard two-blows, and, upon going to the place, found the deceased on the ground. The witness described the stick of the prisoner to be about three feet long, made of curled hickory, about the size of a common walking cane, larger at the butt end, and with a string attached to the small end, to fasten around the prisoner’s wrist. The knife was exhibited in court; and was a common-sized pocket knife, — the blade about three inches long, and sharp at the point.

A negro slave, by the name of Isaac, was then called' as a witness for the State; and concurred, in most points, with the *79witness Brooks. He stated that the deceased and the er gave each other the damned lie, when talking about the nine pence; and also, that the prisoner had his stick in his hand during the quarrel; but, he did not see him shake it over the deceased’s head. He stated, also, that after the money was found, the quarrel ceased for a short time — perhaps fifteen minutes — when the deceased renewed the quarrel, and swore he wpuld-kill the prisoner, and made at him, as described by the witness Brooks. Isaac also stated that, as the deceased approached the prisoner, he heard the latter tell him not to hit or strike him. The witness heard a blow, and, upon looking towards the parties, saw the deceased falling, and saw the prisoner, strike him four or five blows with the stick above spoken of. In all his other statements, this witness fully sustained Brooks.

Nathan Jones, a free negro, was next examined by the State. He fully sustained Brooks, except that he concurred with Isaac in stating that there was a cessation in the quarrel, and that the deceased renewed it. This witness also stated that the prisoner did not shake his stick over the head of the deceased; but had it drawn back in a striking position. He also stated that he heard a blow, and looked at the parties, when he saw the deceased on the ground, and the prisoner strike him three or four blows, with the stick before described. Two witnesses, who were examined on that subject, stated that the deceased had two wounds on the back part of the head, each about two inches in length; and one of the witnesses said that he inserted his finger about one fourth of an inch into one of the wounds, and found no resistance to its entrance. The deceased was described, by one witness,' as small and slender for a boy of his age; and by another, as not tall, but stoutly built. The prisoner was about six feet high, and of the ordinary size of negroes of that height; and was about twenty-three years of age.

The prisoner examined Jack Hughes, a free negro, who fully sustained Brooks and the other witnesses in the general history of the transaction. He deposed further, that when the deceased approached the prisoner, he struck at the prisoner but missed him, and the witness thought he was not *80near enough to reach him when he struck; and that the prisoner immediately struck the deceased with his stick and knocked him down, and gave him several blows after he was on t[-,e groun¿.

The witness, Nathan Jones, stated also, that when the deceased renewed the qurrel, as before mentioned, he swore he would kill the prisoner that night ; that if he did not, he would go to his master on Monday morning, and have him whipped to his satisfaction; and he would then waylay him and shoot him with a rifle.

■ Alexander Jones was then called, and deposed, that he was in company with the deceased, when on his way to the fish trap, that night; that deceased said, he wished that he had borrowed Mr. Long’s knife, for he might get into a scrape, and if so, he would need it.

■ The witness, Brooks, deposed before the coroner, that the prisoner told the deceased not to come to him, or he would knock him down. Upon his examination in court, he did not recollect that the prisoner had made such a remark to the deceased; nor did the witness remember that he had made such a statement before the coroner.

The prisoner’s counsel asked the court to instruct the jury, “that, in trials affecting life, a negro slave should not be convicted of murder, unless a white man would be.convicted on the same evidence.

2ndly, That it the jury should be satisfied that the deceased did steal the nine pence from the prisoner, the deceased had no right to strike the prisoner, for insulting language, in consequence of it; and in that aspect of the case, the prisoner was entitled to be regarded as a white man on this trial.

3rdly, That if the deceased was advancing on the prisoner, with the knife and piece of rail, and struck at him with the latter immediately, before the prisoner struck him with his stick, then it was a case of mutual combat; and although the prisoner might have courted the conflict, the killing would be only manslaughter.

4thly, That the deceased had no right to correct the prisoner, with the piece of rail or the knife, for insolent lan*81guage; but ought to have applied to his master, or to a justice ot the peace, for redress.”

The court refused to give the instructions prayed for, but charged the jury “that, if the prisoner used the insolent language, to the deceased, deposed to by the witnesses, the deceased had a right to correct him, although such language was used by the prisoner, upon the supposition that the deceased had stolen his money. That if they were satisfied that the prisoner used the provoking language, to the deceased, as stated by the witnesses, the deceased had a right to whip him; and if, in the exercise of this right, the prisoner-killed him, it would be murder, unless the prisoner had good reason to believe that the deceased would kill him, or do him some great bodily harm. And, for the purpose of ascertaining whether the prisoner had good reason to apprehend death, or great bodily harm, at the hands of the deceased, it was proper for them to take into consideration the comparative size and bodily powers of the parties, and then-weapons. That if the prisoner had good reason to apprehend either death or great bodily harm, it would extenuate the killing to manslaughter; but if not, it would be murder.”

The jury found the prisoner guilty of murder. A motion for a new trial was then made, which, being overruled, and sentence of death pronounced, the prisoner appealed.

W. A. Graham, for the prisoner,

cited and commented on the State vs. Tackett, 1 Hawks, 217. — State vs. Hale, 2 Hawks, 582 — Slate vs. Reed, 2 Hawks, 454 — 1 Rev. Stat. ch. Ill, see. 41 — 1 East’s Cr. Law, 241. — 1 Russ. 702, 715, 717 — Foster 295-2 Chit. Cr.Law, 482 — 2 Stark. onEv.524.

The Attorney General, for the State,

argued contra, and contended that the authorities cited for the prisoner supported the propriety of the Judge’s instructions.

Gaston, Judge.

We are of opinion that the Judge did not err, in refusing to give the first instruction which was prayed for by the counsel for the prisoner. It is not questioned but that the prisoner was entitled to the benefit of all those humane principles of the common law, which, in in-*82diligence to the frailties of human nature, extenuate the guilt h°m'ciRe from murder to manslaughter. The great distinction between homicide committed with malice, and homjc;c|e committed in a transport of passion, suddenly excited by a grievous provocation, is as steadily to be kept in view, in the trial of a slave charged with the murder of a while man, as in that of a while man charged with the murder of his equal, or of a slave. But, it cannot be conceded that the same matters which would be deemed in law a sufficient provocation to free a white man, who had committed a homicide, in a moment of passion, from the guilt of murder, will have the same effect, when the party slain is a while man, and the offender a slave. It has been authoritatively held, that the killing of a slave by a white man may be reduced from murder to manslaughter, by acts, which, proceeding from a white man, would not in law constitute a sufficient provocation. Among equals, the general rule is, that words are not, but blows are, a sufficient provocation; while in Tackett’s case, it was declared that there might be words of reproach, so aggravating when uttered by a slave, as to excite the temporary fury which negatives the charge of malice. Tackett’s case, 1 Hawks 217, 218. This difference in the application of the same principle, arises from the vast difference which exists, under our institutions, between the social condition of the white man and of the slave; in consequence of which difference, what might be felt by one as the grossest degradation, is considered by the other as but a slight injury. And from the same cause, it must necessarily follow, that some acts, which between white persons are grievous provocations, when proceeding from a white person to a slave — whose passions are, or ought to be tamed down to his lowly condition — will not, and cannot be so regarded. The degrees of homicide are indeed to be ascertained by common law principles; but the principles themselves are necessarily, in their application, accommodated to the actual conditions of human beings in our society.

Nor do we apprehend that there was error in refusing to give the second instruction which was prayed for. It is the difference of condition between the white man and the slave *83—as recognized by our legal institutions — and not the difference between personal merit and demerit — which creates a legal distinction between the sufficiency and insufficiency of the alleged provocation. This distinction, therefore, must be as broad as that difference — or it would not only be unsuited to the state of our society, and incompatible with the subordination of ranks essential to the safety of the State— but would be too vague to be admissible as a legal rule. It may be, that the while man who debases himself by a familiar association with a slave, and, in the course of that assocition, is guilty of acts of meanness like that attributed— whether justly or unjustly — to the unfortunate deceased— has not claims to personal respect equal to those of the slave; but the distinction of castes yet remains, and with it remain all the passions, infirmities, and habits, which grow out of this distinction.

With respect to the fourth instruction prayed for by the-prisoner’s counsel, we hold that the Judge did err in refusing it, and instead thereof directing the jury, as we understand him to have directed, that the deceased had a right, because of the prisoner’s insolence, to attack the latter with the knife and fence rail. In the case of the State v. Hale, 2 Hawks, 582, it was decided that the battery of a slave, by any other than his master, was per se a public offence; but, at the same time it was declared, that such a battery might be justified, if not excessive, by circumstances which would form no justification for the battery of a white mail. It was not attempted to define those circumstances — nay, it was pronounced impossible to do so with precision. The nearest approach to a definition was, that the circumstances must be of such a character as warranted the apparent breach of the public peace, “ under the habits and feelings of society, securing at “ the same timej the white man from injury and insult, and t! the slave from needless violence and outrage.” Where we can find a rule established, it is our duty to adhere steadily to it. Wherever our predecessors have declared it impossible to draw the line, we dare not attempt it.

We feel ourselves, therefore, bound to say, that insolence of a slave does not justify an excessive battery; and we can*84not hesitate to hold, that an assault with a sharp pointed knife, three inches long, and a piece of fence rail of, the length of one’s'arm, is an attempt to commit an excessive battery— ]-,ecause these are not lawful instruments wherewith to check or to correct insolence. The language of his Honor indeed, is, “ that if the prisoner used the provoking language testified by the witnesses, the deceased had a right to whip him;” but, by the phrase “ whip,” he must necessarily be understood as meaning to whip in the manner testified by the witnesses. But, if the language used were intended to convey only the idea of moderate chastisement, by an ordinary instrument of correction, the correctness of that instruction would depend materially upon the fact whether the insolence had been discontinued, or was going on at the moment of correction. Upon this point, the testimony seems to have been contradictory, or, at all events, was not free from doubt. One witness represented the reproachful language of the prisoner as continuing uninterrupted up to the moment of the conflict. — ■ while the others stated that it entirely ceased upon the finding of the piece of money. How the fact was, it was the peculiar province of the jury to determine; and, in determining that fact,fit might be very material to ascertain what was the motive of the prisoner’s return, after he had been chased off by the deceased, and what the manner of his behaviour, when he,so returned. If the insolence had been clearly discontinued, then the attack of the deceased upon the prisoner was for vengeance on account of past insolence, and not in order to stop continuing abuse. And, on this point, we are instructed by our predecessors that it is not necessary, in any case, that a person who has received an injury, real or imaginary, from a slave, should carve out his own justice; for the law has made ample and summary provision for the punishment of all trivial offences committed by slaves, by carrying them before a Justice, who is authorised to pass sentence for their being publicly whipped. This provision, while it excludes the necessity of private vengeance, would seem to forbid its legality, since it effectually protects all persons from the insolence of slaves, even'where their masters are unwilling to correct them upon complaint'being made. State v. Hale. 2 Hawks, 585.

*85If we could reconcile such a course to a sense of duty, we should forbear from examining the case any further. The prisoner was entitled to have the law applicable to his case correctly expounded to the jury. This, in our judgment, was not done; and, as the verdict may have been affected by that error, it is proper that he should have another trial. But, it is impossible not to see, that upon that trial, the other questions which have been here argued must occur; and, therefore, so far as we have formed a decided judgment upon them, we cannot rightfully decline from now declaring it.

One of these is connected with the third instruction prayed for by the prisoner’s counsel. If it be the meaning of that instruction that the case of the prisoner falls within the rule which obtains where parties become suddenly heated, and engage immediately in mortal conflict, fighting upon equal terms, and one killeth the other; we are obliged to say that the case of the prisoner is not within that rule. In mitigating the offence to manslaughter, Where death ensues upon a sudden rencounter of this sort, the law shews its indulgence to that frailty of human nature which urges men, before they have an opportunity for reflection, to a compliance with those common notions of honour which forbid either to give way to, or acknowledge the superior prowess of, the other. Such notions spring from a sense of equality, and the horror of personal disgrace. They do not prevail — they ought not to exist — between those who cannot combat with each other, without degradation on the one hand, and arrogance on the other. If that instruction is predicated upon the ground that the first assault, having been made by the deceased, constituted a provocation for the homicide committed by the latter, it then presents enquiries by no means free from embarrassment.

As yet a precise rule has not been laid down by which to pronounce what unlawful 'interference with the person of a slave by a white man, shall be deemed a provocation sufficient to excite that transport of passion, which, although a deadly weapon is used, may extenuate the killing of the assailant into manslaughter. And by whomsoever the attempt to prescribe such a rule shall be made, he will find it no ea*86sy task to form a rule which shall consist with the principles Public policy on the one hand, and with the just claims of humanity on the other. The superior rank of the assail- ^ ant. — the habits of humility and obedience which belong to the condition of the slave — habits which are not less indispensable to his own well-being than required by the inveterate usages of our people — clearly forbid that an ordinary assault or battery should be deemed, as it is between white men, a legal provocation. The law'- will not permit the slave to resist. It is his duty to submit. — or flee. — or seek the protection of his master; but is impossible, if it were desirable, to extinguish in him the instinct of self-preservation; and although his passions ought to be tamed down so as to suit his condition, the law would be savage, if it made no allowance for passion. He may have been disciplined into perfect obedience to the will, of his master, and, therefore, habitually patient under his correction; but he cannot but feel a keen sense of wrong when authority is wantonly usurped over him by a stranger, and exercised with cruelty. There is therefore no difficulty in laying it down that a battery which endangers his life or great bodily harm — .proceeding from one who has no authority over him — will amount to such a provocation. But between these extremes there are intermediate injuries of various grades. In regard to them, we are obliged to resort to the primary rule which pronounces on the character of provocations, and apply it according to the circumstances of each case. That is a legal provocation of which it can be pronounced, having due regard to the relative condition of the white man and the slave, and the obligation of the latter to conform his instinct and his passions to his condition of inferiority, that it urnald provoke well disposed slaves into a violent passion. And the application of the principle must be left, until a moro precise rule can be formed, to the intelligence and conscience of the triers.

Two other points have been presented to our consideration, in the course of the argument, upon which it is proper to express our views. It has been correctly stated by the Attorney General, that although there should be a legal provocation, yet the homicide will be murder, if committed under *87such circumstances of cruelty as manifest the thoroughly wicked heart — and he has insisted that such circumstances of cruelty are manifested in the case before us. Cruelty, when the facts from which it is to be inferred all distinctly appear, is an inference of law; and, therefore, properly drawn by the court. But in this case, the facts are not so set forth as to leave the question of cruelty one for legal inference.— No more is stated, than that several blows were struck with .a stick of curled hickory of the ordinary size, and with the larger end thereof,'without informing us more of the nature of those blows, than that onfe of them was mortal. On the part of the prisoner, it has been insisted, and properly insisted, that if the weapon used was not of the character called deadly, that is, likely to produce death or great bodily injury, the homicide would not be murder, although committed without legal provocation; and it has been argued, that in this case the weapon was not of that character. No doubt there are many cases, in which the court can distinctly see, from the nature of the instrument used, whether it be of a deadly character or not; and, therefore, need not that the jury should directly find the fact for their information. But this is not á case of that kind. It is one in which it falls peculiarly within the province of the jury to ascertain, whether such a weapon, in such hands, and as it was used, was likely to produce fatal consequences or not.

This opinion must be certified to the Superior Court of Person, with directions to award to the prisoner a venire de novo.

Per Curiam. Judgment to be reversed.