The opinion of the Court was delivered by
Wardlaw, J.“ If any person shall unlawfully whip or beat any slave, not under his or her charge, without sufficient provocation by word or act,” such person, after conviction, upon indictment, may be punished by fine or imprisonment, under the Act of 1841. (11 Stat. 155).
The beating of another’s slave without provocation may be justifiable; as for instance, by a patrol, or a constable executing a sentence. The beating which falls within the Act must be unjustifiable, and that is expressed by the word “ unlawfully.” *473It must moreover be without the excuse of sufficient provocation. The provocation, which might have excused moderate chastisement, may not be sufficient to exempt from punishment the infliction of extreme torture. A reasonable proportion between the whipping and the provocation is implied by the word “ sufficient and of this proportion there can be no standard but the opinion of the jury, formed with just regard to the usages of the community and the circumstances of the particular case.
The indictment must shew that the beating was inflicted upon a slave, and one not under the charge of the defendant. What slave it was, it is important to shew only for the purpose of particularizing the charge, so as to enable the defendant to prepare his defence understandingly, and to plead the result of the trial in bar of another prosecution. The owner’s name is only part of the description of the slave. Seeing, in this case, that the slave was generally called Mrs. Smith’s ; that she had had possession of him with the consent of the legal owner; and that, in the exercise of full control over him, she had committed him on hire to a bailee, who was responsible to her, we think there was no material misdescription in Styling him her property.
The Court is, then, satisfied with the instructions which were given to the jury, and perceives no sufficient ground for disturbing the verdict.
Motion dismissed.
O’Neall, Evans, Frost, Withers and Whitner, JJ. concurred.Motion dismissed.