Pinkston v. Greene , 9 Ala. 19 ( 1846 )

ORMOND, J.

The principal objection made to these pleas is, that the defendant’s wife could not lawfully employ the slave as an instrument in her defence. This argument is founded upon the necessary distinction, which it is alleged the law makes between free white persons and slaves, as it regards the right of self-defence — That a provocation, which, as between free white persons, would justify or excuse a resort to force, to repel an actual or threatened injury, would afford no excuse whatever to a slave under these circumstances — That he cannot repel force by force, but must trust to the law for his protection.

We shall not enter upon this delicate and important investigation. How far a slave would be authorized to repel force by force, when assaulted by a white person, or to what extremity he must be driven, before he may turn upon his assailant, and become the aggressor, are questions which do not arise upon these pleas. Nor docs any question arise how far the domestic relation of master and slave will justify or excuse the latter in an assault and battery upon a white person, in defence of his master or mistress, whether acting by their command or not, because the slave is not proceeded against in this action. From his condition in society, no damages could be recovered from him, and therefore, for such an offence, if it be one, he could only be proceeded against criminally.

One who' commands a trespass to be committed, is a principal in the act: the act of the slave, therefore, by the command of his mistress, is her act, and for all the consequences attending it, she is as responsible as if committed with her own hands. The slave was, indeed, merely an instrument in her hands, and is so considered in this action, which is not for an assault and battery by the slave, but by the mistress. From the degraded condition of the slave, as recognized and established by our law, he is unfit to interpose in a difficulty between white persons, especially females; and therefore, the employment of such an instrument of defence would, of itself, aggravate the injury, and enhance the damages, unless the threatened danger was so imminent as to render a resort to any means justifiable, or at least excusable, to prevent irreparable injury.

It is further urged, that the fifth plea is bad, because it alleges a battery to preyent a mere assault. This objection is not tenable. An assault might be so violent as to threaten instant danger, and justify or excuse a resort to force to ward off or repel the apprehended injury. Such is the language of the plea, that to prevent a battery upon the defendant, she commanded the slave to defend her, and in so doing, he unavoidably committed the assault and 'battery complained of. This, if true, and if the battery was not excessive, and pushed beyond the necessary defence of his mistress, constituted an .excuse. If the plea was not true, issue should have been taken upon it, and if the plaintiff did make the first assault, but the battery was carried beyond the bounds of reason and necessary self-defence, it should have been specially replied. [Bacon’s Ab., Trespass, 618 ; 1 Chitty’s P. 579.]

It is further contended, that although the Court erred in sustaining the demurrer to these pleas, this Court will not reverse, because the defendant could have had all the benefit which could have been derived from these pleas under the seventh plea, and has therefore sustained no injury by the erroneous action of the Court.

In McKenzie v. Jackson, 4 Ala. 230, a party pleaded a special plea and the general issue.' The Court sustained a demurrer to the plea, and this Court refused to reverse, because the matter of the plea could have been, ánd was in fact, given in evidence under the general issue. In Rake’s adm’r v. Pope, 7 Ala. 161; there was also a special plea and the general issue, and a demurrer, improperly sustained to the former — this Court held, that the special plea amounted to the general issue, which being in, it was impossible that the action of the Conrt, if erroneous, could have prejudiced the de'fendant, as the plaintiff was compelled to make the same proof to sustain his action under the one plea, -as under the other. In both of these cases it was, therefore, impossible that any injury could have accrued to the party against whom the error was committed, and that must be the state of things' presented by the record, before this Court can undertake to say,'that an error of the Court below has done the party against whom it was committed, no injury. [Shekan v. Hampton, at this Term.]

In this case, we cannot say that no injury has accrued from the suppression of these pleas. The seventh plea defends the interference of the slave, upon the ground, that a battery had been committed by the plaintiff, whilst the fifth plea justifies the command to the slave to interpose, to prevent a threatened injury. It is obvious that these pleas are entirely dissimilar, and that the testimony pertinent under one, would not sustain the other.

Let the judgment be reversed, and the cause remanded.