#### STATE vs CHRISTOPHER ROBBINS.

If a Judge, in charging a jury in a case of homicide, lay down a series of *250abstract propositions, some of which are not strictly applicable to the facts of the case, and there be error therein, which however, is corrected in a part of the same charge that applies those propositions to the facts, it is not a cause for a venire de novo.

This was an indictment for murder, tried before 'Bailey, Judge, at tbe last Superior Court of Wilkes.

The defendant was indicted for the murder of a negro slave belonging to himself, by the name of Jim. ' The evidence was principally the testimony of three step-children of die defendant, the eldest of whom, Mary Jane, was about seventeen years old. She stated that the prisoner came home on the evening of the 20th of July last, 'from a tax-paying, between sun-set and dark, and after asking a question as to the weather, and receiving an answer, sat down at the door for a minute or two, seemed serious and held his head down. Ho then got up and went out, and was"out for some time ; the precise time not stated. She next heard the deceased at the woodpile, crying out, “ don’t kill me,” and the prisoner cursing him, and saying, “lie intended to kill him.” On going to the door, she'saw the prisoner beating the deceased with the handle of an axe, holding the blade in both hands. He beat tho deceased, she stated, two or three times around the woodpile, from thence to the barn, and from thence to tho house, still using the handle of the axe. This handle, she said, was split before the beating began, for about a finger’s length from the end, and that the force used split it further, to within a finger’s length of tho blade. This handle, she said, was of hickory, and about tho usual size. Afterwards, she said, she saw blood on tho axe-handle. The deceased then ran into tho kitchen, saying to the prisoner, that he .would kill him, to which he, prisoner, replied, he intended to do so. The prisoner then putting down the axe at the door, wont in, and striking the deceased with his fist on the side of the head, knocked him against the fire-board, from which he fell violently on the floor. From that time, she said, the negro became speechless. She heard him making groans several times in the house and out of it. After the deceased fell, tho *251prisoner jumped on him, and stamped him for moro than ten minutes; that he stamped him upon the head, shoulders, back and sides ; indeed, all over ; that the prisoner then called for his wagon-whip, and with the butt of it beat the deceased a long time, to wit, for half an hour, upon the head, back and sides; that he would beat until he became exhausted, and then rest and commence again; that he then called for scalding water, and there being none, hacl water heated, and poured it on the head, back and sides of the deceased; that he then took salt, and putting it oh the back of the deceased, whipped it into the flesh with the wagon-whip. She said that he heated water four or five times, and poured it on the deceased ; that this stamping, whipping with the wagon-whip, and pouring of the scalding water, continued without cessation until 9 or 10 o’clock at night. He then made the witness and her sister drag the deceased out of the house into the yard, and said, “ damn you, you may rest there while I rest in here,” and went to bed.

The other two children, Martha, about thirteen years of age, and Pinkney, about fifteen, proved in substance the same. It was then proved that the wagon-whip was of a large size, with a butt-end of wood covered with leather.

One of the witnesses stated, that while the prisoner was beating the deceased with the axe-handle near the wood-pile, he said, “ why did you not” or “ you did not feed my horse,” to which the deceased replied, that he had fed the horse. The only other words tho deceased was heard to say, were, “ Oh Lord!” and “ you will kill me.” These last words were said at different timos, and the prisoner replied, “ I intend to kill you.” It was in proof, that the deceased died about 1 o’clock the next morning ; and about 4 o’clock, tho prisoner got up and went into the yard and enquired for his family, who had all fled but Martha; that he made her assist him in dragging the body into his (deceased’s) house or cabin; that he told her to shut the door and nail it up from the inside, and that she must come out by raising a plank of the floor ; that he made the witness wash up the blood from the kitchen floor, *252and put sand on tlie floor ; that there was much blood on the floor before it was washed off.

One Johnson swore that abont 10 or 11 o’clock, the wife of the deceased came to his house, and he returned with her ; that the deceased was then lying in. the yard, still alive, hut breathing very hard and making a gurgling noise in breathing. This witness also proved that Jim was the slave of the deceased, and was about sixty years old.

The coroner of the county, and one of the jury-of inquest, testified that they went to the house of the prisoner on the evening of 'the 21st of .July last, about one hour before sunset, and found the deceased in his cabin on a sort of bod or scaffold, dead'; that they then took the deceased into the yard, and examined the body; that his jaw-bone was broken, and bis teeth knocked out; and that there appeared on the head, seven wounds, six on the front and one on the hack part of the head; that one of those in front was of a dangerous character ; the other five very severe ; there was one of the wounds on each temple, and the other four between these, on the forehead; that the wound on the hack of the head was a round indentation, -and witnesses thought the skull was “ dented” or fractured ; that they did not particularly examine the other parts of the body, and only saw one place on the breast and one on the hack where there was any abrasion of the skin. The -coroner stated that the head of the deceased was very much mutilated, and on that account he did not particularly examine the body. A physician, Doctor Goolc, who heard, all the evidence, stated it as his opinion, that the deceased, died from the violence infiieted ; and that the wounds on the front part of the head, as described by the coroner, were of a character to produce death.

The defendant introduced no testimony.

1. The Court charged the jury, that a master has a right to chastise his slave, and to exercise his own discretion as to the amount of punishment, provided life is not taken, and that the Court had no right to question his authority so to do ; that if the master take life, ho is then held responsible.

*2532. If tbe master chastise his slave for the purpose of correction and amendment, and unfortunately kill him, without any intention of so doing, and without a weapon calculated to kill, he is not guilty of any offense.

3. If the slave be disobedient, or if he resist the authority of Ms master, and under passion excited by thp provocation, be slain by the» master, the offense would not, be murder, but manslaughter only; although a deadly weapon: was used. The disobedience-, or resistance, would amount to a legal provocation, and would be the- same as a blow from a white man.

4. If the master intend to kill, it is immaterial how death be produced, whether- with or without a deadly weapon, and death ensue, he is guilty of murder.

5.. If he- do not intend to> kill, but deliberately* chastises for th®» mere-purpose of torture-and revenge, and death ensue, he is guilty of murder. If he cfe not intend to kill-, but uses a deadly weapon- for the mere purpose of inflicting great bodily harm, regardless- whether death might follow or not, arid death does follow, it is murder.

6- If the master strike with his fist, not intending- to kill, but strikes to correct and amend, and a mortal blow be received by the slave’s.falling against the fire-board, or upon the floor, it is no offense, and is an accidental killing.

Y. If,, however, after such a blow be given with the fist, and a mortal blow is. received by the fall, the master beat him while on the floor, with the butt-end of a wagon-whip, out of mere cruelty, torture» and revenge», and not for correction, and his death be thereby hastened ; or in other words, although he would have died of the mortal wound! received by the fall, but would not have died so soon, according to the opinion of the doctor, and these additional blows be given merely for the purpose of torture and of malice, he would be guilty of murder.

8. The Court further charged the jury, that the axe-helve with which the prisoner struck the deceased, was a deadly weapon; and whether the wagon-whip was a deadly weapon or not, was a question for them and not for the Court.

*2549. The Court further cliai-ged, by way of application of the principles above declared, that if the jury should be satisfied that the first three witnesses had told the truth, and that Jim had not fed his master’s horse, the master had a right to inflict punishment, and as to the amount of punishment he was the sole judge, and it jvas the duty of the deceased to submit; that he had no right to run; that running would be disobedience, unless his life would be put in jeopardy by submission; that if the prisoner were about to take the life of the deceased, then he had a right to run, otherwise he must unfeignedly submit to the will of his master.

10. That if the doctor were correct in his opinion, that the mortal blow was received in the house, and it was caused, as before stated, by falling; and after the mortal blow was received, the prisoner beat with the whip, stamped with his feet, and used the hot water and salt for a length of time and in the manner stated by the first three witnesses, and this beating and stamping shortened the life of the deceased for only one hour, if done out of malice and for the purpose of torture, he would be guilty of murder.

The prisoner’s counsel asked the Court to charge the jury, that if a master is seen whipping his slave, the presumption is that he is rightfully whipping him.

The Court declined to charge the jury in the language thus used, but charged them, as before stated, that the master had a right to inflict punishment without provocation; and if lie did not kill, his acts could not be questioned in a Court of justice.

The Court further charged, that the presumption was that the prisoner was innocent until the contrary was proved, and that if a killing were proved, or admitted, the presumption was that it was murder, unless the contrary was either shown by the prisoner or it appeared from the evidence adduced by the State.

The Solicitor for the State moved his Honor to charge, that if the first three witnesses were believed by the jury, the prisoner was guilty of murder.

The prisoner’s counsel admitted that the prisoner had caus*255ed the death of the deceased, but insisted that it was only-manslaughter. Defendant excepted on the ground of the Court’s refusing the instruction asked, and for error in the charge, particularly in 4, 5, 7 and 10 of the foregoing propo* sitions.

Yerdiet—“ guilty of murder.” Judgment and appeal.

Attorney General, for the State.

Boyden and H. G. Jones, for the defendant.

Battle, J.

Upon the testimony, supposing it to be true, the counsel admitted on the trial, that the deceased was killed by the prisoner; but contended that it was not a case of murder, but of manslaughter only. The jury, under the charge of the presiding Judge, having found him guilty of murder, his. counsel excepts to the charge as erroneous in several particulars, and insists that he is, therefore, entitled to a venire de novo.

In considering those exceptions, it is proper to remark, that “ the language of a Judge in his charge to the jury, is to be read with reference to the evidence, and the points disputed on the trial; and of course is to be construed with the context.” State v. Tilley, 3 Ire, 424. It is also to be borne in mind, that counsel have no right to require an instruction upon a hypothetical state of facts, not supported by the testimony; and if the Judge express an opinion “upon a mere abstract proposition, and it is apparent upon the whole case, that it could not have misled the jury,” it is not erroneous. State v. Benton, 2 Dev. and Bat. Rep. 196 ; State v. Collins, 8 Ire. Rep. 407 ; Hice v. Woodard, 12 Ire. Rep. 293. The Judge commenced his charge in the present case, by stating a series of propositions, among which are those to -which the prisoner excepts. Without noticing any others than those which the counsel deem objectionable, we are of opinion that they were merely abstract, having no connection with any state of facts proved on the trial. This very clearly appears from the application which the Judge himself made of the “ principles” which he had before declared. In such applica*256tion, lie stated the law as favorable to tlie prisoner as the latter had any right to require ; and ins so- doing, corrected whatever error he may have previously committed. It is unnecessary to comment upon the facts in detail- The homicide being admitted, we may "say, as this Court said in State v. Hoover, 4 Dev. and Bat. Rep. 365, that we are- “ at a loss- to comprehend how it could have been submitted to the jury, that they might find an extenuation from provocation. There is no opening for such a hypothesis.” The only act of the deceased, that can be held to have been a provocation, was tlie imputed neglect to feed his master’s- horse. His flight, while- his master was beating him with a deadly weapon, and declaring-that he intended to kill him, cannot be deemed such. State v. Will, 1 Dev. and Bat. Rep. at p. 165. The prisoner then had a right to chastise the deceased for the only offense- of which there is the slightest testimony that he was guilty. Can the prisoner take shelter under thart right,, for what he actually did? We adopt for our answer,,with a slight variation, other language- of tlie Court, in tlie same case of the State v. Hoover, “ that nothing eouldi palliate-- such a course of conduct. Punishment, thus immoderate and unreasonable in. the measure, tlie continuance, and tlie instruments, loses all character of correction in fm'O domestico, and denotes plainly, that the prisoner must have- contemplated the fatal termination, which was the natural consequence of such barbarous cruelties.” -

Our conclusion then is, that there is no view which could have-been ta-lcen by the jury, of the facts set out inthe-prisoner’s bill of exceptions, that would mitigate the- admitted, homicide from» murder to manslaughter.. The consequence- isy that the judgment cannot be reversed; and there-being: no-error assigned. or seen, for its arrest,, a certificate- to that effect must bo sent toitlio Superior Court, to the-end; that the sentence of the law. may be-pronounced upon, the prisoner.

Per Curiam.

Judgment affirmed.