concurring: Prior to the Constitution of 1868 corporal punishment was allowed, such as branding- for manslaughter, cutting off the ears for perjury, and whipping and setting in the stocks for larceny and other crimes; but in no case without the verdict of a jury of twelve impartial men, rendered in open court, and the sentence of a judge. The advancing civilization of the age required that corporal punishment, even in such eases and with such safeguards, should be abolished, which was done by the Constitution, Art. XI, sec. 1. This removed from our statute book all possibility of whipping or other corporal punishment, even by the verdict of a jury, with the guaranteed right of the benefit of counsel and the judgment of a court. Certainly it could not have been contemplated that whipping should be inflicted without a verdict, without a trial of any kind, and without the sentence of a court. Such punishment without a jury trial and judgment was unknown to the law even in the most barbarous days of the common law. It needed no constitution and no statute to forbid its imposition by the arbitrary act of any officer, and no statute since has authorized the infliction of whipping, branding, or cutting off ears in any case, and the defendant here had no- right to inflict either.
Before the jury, the witness Benton testified that he saw the defendant whip Junius Potter, and said: “I do not know how many licks he struck him; I reckon he must have struck him fifteen or twenty. He hit him with that strap, I guess; it looks like the same thing. The strap did -not have a handle to it. It was a strap like this; I guess it is the same one. I measured it before I left there; it was 2% inches wide and 2% feet long and % inch thick or more. When he struck Junius Potter 'he struck him right on his bare back. He just made him get right down and pulled down his pants and had two men to hold him. I do not recall who held his head; one did, and one sat on his legs. I think somebody sat on his feet. . . . After he was whipped, Junius Potter worked on that day and went back to thel camp that night. I think it was that night that Dr. Parrott was called.”
The judge after the conviction of the defendant, according to custom, and in the proper discharge of his duties, as we have held in S. v. Woodlief, ante, 887, investigated as to the general character and conduct of the defendant in order to fit the punishment to the crime. This was proper and customary in order that the judge might be informed as to the proper punishment to inflict. Besides, the defendant has *901excepted that the sentence of one year in jail is excessive, which made it necessary to send up the evidence in the record. On this investigation Benton, who was- one of the prisoners at the time the defendant inflicted the whipping for which he was convicted, and who was the chief witness against him on the trial, and whose testimony must have been found to be true by the jury, testified on such examination by the judge: “I kept a little book about 2 inches wide. There is not but one more man that knew that I kept it. I toted it in my shoe; he was Frank Gray. I kept it from the 20th of July to the 13th of December, what I saw Mr. Mincher whip. Tuesday, July 20, I saw 26_ whipped; and one died that night. Tuesday, the 27th, I saw 7 whipped; Monday, the.2d, I saw 7 whipped; Tuesday, August 19, I saw 13 whipped. Tuesday, the 24th, I saw 12 whipped; Tuesday, the 31st, I saw 11 whipped. September 18 I saw 22 whipped. September 25th I saw 4 whipped; the 27th I saw 11 whipped; the 29th I saw 12 whipped. October 26th I saw a woman whipped — no, sir, I didn’t see that, but I heard her whipped. I guess it was Mr. Mincher did the whipping. November 2 I saw 6 whipped. Tuesday, the 6th, I saw 9 whipped. December the 13th I saw 9 whipped. The whipping was done with that leather strap, a man sitting on his head and one on his feet, and Mr. Mincher applied it. I saw a man whipped about the Clay Hole; his name was Horace-White. Mr. Mincher whipped him three times before he could get away from the place he was át. . . . An ordinary whipping was always from 25 to 50 licks, looked to me like; and your Honor, there was something a-doing when that leather strap went down about 15 or 20 licks. I expect he would about raise the dead.' Of course, I never got it. He never struck me, but he threatened me several times.” There has been omitted above in the place marked by points (...) unprintable evidence of brutality, almost beyond conception. But it is on the record of this Court for all time without any contradiction from the defendant.
The defendant was present in court and was asked by the judge as. to his weight, to which he replied that he weighed 240 lbs. The judge, of course, did not go further,-but the defendant did not avail himself of the opportunity thus afforded, and the invitation by implication at least to deny any of the above allegations of brutality and gross misconduct. He contented himself merely with putting on evidence that the witness was a man of bad character. As he was a convict, it could hardly be expected that this could not easily be shown; but nevertheless he was the same witness whom the jury had believed on the trial, and the defendant 'did not avail himself of the opportunity to deny a single item of the testimony. He was a competent witness, and both the jury and judge found him worthy of belief.
*902There was another witness, one Gray, who testified also to repeated whippings inflicted by the defendant in the brutal manner that had been shown, though he had not seen as many pf these whippings as the witness Benton.
It must be noted that prisoners thus committed to the custody of the law can rarely have any witnesses except themselves and their fellow convicts. They have no protection from the bad temper and the brutality of irresponsible and too often brutal officers if the law permitted the infliction of corporal punishments upon them in any case. To allow this is to authorize the officer to be judge and jury in his own case and makes him an irresponsible tyrant without restriction. There can be no more helpless beings on the earth than convicts under such circumstances.
■. If there is any one who needs the protection of the law it is those who are weak, for the strong are generally able to take care of themselves', and even more than the weak they need the protection of the law who have been placed in custody of the law,, under the ban of public opinion and are powerless to protect themselves even against such unspeakable brutality as was inflicted on this occasion.
The State had taken from the victim of this brutal assault his liberty. He could not save himself either by flight or resistance. Had he attempted either he would instantly have been shot and killed. The State owed him protection from violence, especially from its own agents, sufficient food and clothing, and good treatment. Nothing less than this can be tolerated in the treatment of these unfortunates by a Christian, civilized people.' It is probable, though it does not clearly appear in the record, that the man thus brutally treated by an agent of the State of North Carolina while in its. custody and under its protection was a negro; but that is no defense. It matters not what color an African sun has printed upon him. He was a human being and entitled to the elementary rights of a man. Over the portals of our courthouses and above the judgment seat of the presiding judge the Constitution of the State has written “Equal justice to all and equality before the law.”
If a horse or other dumb animal had been treated in this manner, with one man sitting on his head, another on his legs, and another on his feet, with a 240-pound man enraged, and without restraint, coming down on his naked body with a leather strap 2% inches wide, 2% feet long, and inch thick, or more, he would have been punishable by the law. Is it possible that a human being, made in the likeness of his Maker, deprived of his liberty and therefore under the protection' of the law, shall be subject to such punishment, and that it is excusable because the victim was a negro?
*903But it is said that these men are convicts and sometimes insubordi-náis, and such punishment as this is necessary. “Necessity was ever the tyrant’s plea.” Such punishment as was here inflicted was never necessary, and to permit whipping convicts in any case is to permit it to the extent and in the manner and according to the temper and unrestricted will of the overseer, for the only witnesses are the cowed fellow convicts who fear a similar punishment at any hour. In S. v. Nipper, 166 N. C., 272, the victim of the flogging died within a few hours, but the only punishment inflicted was a fine of $10, because it was not shown that the severe flogging caused the death. In the present case it is in evidence that one of the other convicts thus whipped died the same night. We have no information whether that homicide has been' investigated. Presumably it has been. In this very case a physician was called in that night. The victim did not die, but the punishment must have been severe, since the physician was called in.
It does not follow because of the revelation of conditions in the Nipper case and in this that such terrible treatment of convicts is usual in this State. On the contrary, doubtless such occasions are rare and the majority of overseers are humane men. But the fact that two such cases have come into court renders it possible that there have been others of which we have heard nothing. The fact that such cases can occur is proof conclusive that the right to flog prisoners ought not to be put in the hands of any man.
In S. v. Nipper some of the Court, at least, intimated very clearly that under the Constitution, as flogging was forbidden to be imposed even by the verdict of a jury and the sentence of a judge, it could not be authorized by a resolution of the board of county commissioners, and in this case there were no such resolutions. Though that case was decided two years ago, the Legislature has never thought it had the power to confer upon the county commissioners or overseers of convicts such power, for no act of that kind has been passed. It would be strange, indeed, if it had, when in nearly all other States and countries, even in Mexico and Eussia, there are now statutes forbidding the corporal punishment of prisoners under any circumstances.
Nothing is more fatal to-discipline in prisons than the infliction of punishment which deprives the convict of self-respect and makes him an outlaw in spirit by its injustice and brutality. Corporal punishment has not only been found unnecessary elsewhere and is strictly forbidden. but kindly treatment with reasonable and just punishment proportioned to the offense, and not inflicted at the arbitrary will of a subordinate, sometimes moved by passion, has been found more successful. In this State last Christmas the Governor gave a furlough, as a reward for good conduct, to a large number of inmates of the peni*904tentiary, and in not a single instance was bis confidence abused. Convicts are men and are more moved by appeals to tbeir better natures, and by tbe bope of reward for good conduct, witb moderate and just punishments, only wben found necessary, tban by sucb brutalities as appear in tbis record.
Tbe county commissioners of Lenoir County, 5 October, 1914, passed the following resolution: “Ordered, that tbe superintendent of tbe roads be and be is hereby authorized to use such means as be may deem necessary to enforce order and obedience by tbe convict force.” Tbis must mean only “sucb lawful means” as are necessary. Tbe chairman of tbe county commissioners who was a witness for tbe defendant stated: “At tbe time we passed tbe resolution I guess we never thought be might take a man down and put a man on bis bead and one on bis feet, and on bis bare back put a strap like that on him.” Tbe resolution conferred no power on the defendant to inflict corporal punishment, and if it bad expressly done so, it would have been invalid. There is no statute which has ever given tbe county commissioners tbe power to authorize corporal punishment, seeing that sucb power has been taken from tbe judge and jury. Sometimes young white boys, of otherwise good character, are sentenced to tbe roads for carrying concealed weapons, for tbe use of a knife or other weapon in an affray, and similar conduct. Shall one of them be subjected to flogging? Certainly tbe Legislature of North Carolina, in tbis day, will never pass an act authorizing tbe infliction of flogging only upon colored prisoners and only by white overseers.
Wben some forty years ago in S. v. Oliver, 70 N. C., 60, tbis Court abolished tbe barbarous doctrine of tbe common law that a husband bad tbe “right to whip bis wife witb a whip no larger tban bis thumb,” which tbe Court bad then reaffirmed as recently as S. v. Rhodes, 61 N. C., 453, tbe Court needed no other authority tban to say witb simplicity and directness: “Tbe courts have advanced from, that barbarism, until they have reached tbe position that tbe husband has no right to chastise bis wife under any circumstances.” Even if the common law had ever recognized tbe right of an official in charge of prisoners to whip them at bis own pleasure and to any extent be wishes (which it never did), and if, further, tbe Constitution bad not forbidden tbe infliction of sucb punishment even under authority of a verdict by a jury and sentence by a judge, still tbe Court, in response to tbe sentiment of a more enlightened and juster age, would need no authority further tban to say, “We have advanced from that barbarism.”
Both on tbe trial, as well as on tbe investigation by tbe judge, above set out after tbe verdict, tbe defendant thought best not to go upon tbe stand, though an innocent man in tbe face of the testimony of sucb *905brutality could not have allowed such, evidence to go down to posterity on the record without contradiction.
The Attorney-General cited S. v. Hatch, 116 N. C., 1003, and asked the Court to construe the responsibility of the county commissioners in a case of this kind. In this request the defendant’s counsel concurred. The Court has not done so; but as the writer of that opinion, speaking for myself only, and under the authority of that case, as I understand it, and the cases citing it in the Anno. Ed., I think that if the county commissioners had given the defendant the power to inflict such punishment as this they would have been responsible both by indictment and by civil action for damages; and that if such punishment, had been previously inflicted so often that by reasonable supervision the county commissioners should have heard of it, and had not removed the overseer and caused him to be prosecuted, they would have been equally responsible both by indictment and by an action for damages by the party aggrieved for willful omission and neglect of duty.
There is no evidence that by reasonable care the commissioners could have heard of the infliction of such punishments by the defendant or others. There is no reflection upon the people of the county or the people of the State, who certainly would not have tolerated such conduct. On such conduct becoming known, it has been promptly and properly punished by court and jury in this ease. When there is a foul sore on the body concealment aggravates it. When it is in the conduct of government the remedy is to probe it and treat it. A sound public opinion, like the rays of the sun, cleanses and purifies.
Note. — Laws 1917, ch. 286, sec. 7, now forbids any prisoner to be flogged unless of the “incorrigible” class at the State prison, and then only in the presence of the State physician or chaplain.