Dave v. State , 22 Ala. 23 ( 1853 )

GIBBONS, J.

In the relation of master and slave, the master is entitled to the absolute dominion and control over the slave. The slave owes absolute and unconditional submission to the master. The master has the right to chastise and punish the slave in order to enforce his obedience, and to compel him to the performance of his duties. If the slave throws off the authority of the master, puts himself in a hostile attitude towards him, resists his dominion and control by physical force, evincing by his acts, while in a personal conflict with the master, a design to make that resistance effectual in escaping from his dominion and authority, the.master has the right to employ such means, and so much force, to any extent, as will be effectual to subdue him. But if the slave is not resisting the master by physical force, or by hostile acts, but is simply in a state of disobedience, without personal violence towards the master, then the latter can only administer such punishment as is appropriate to the case, without endangering life or limb.

The slave, in common with all human beings, undoubtedly has -certain natural rights, and among these, is that of self-protection or self-defence; but in order to avail himself of these natural rights, for the justification of his acts, he must not himself be a wrong-doer. If, in the perpetration of a wrong, he does an act which he might justify if he was in the right, the law will no more protect him on the ground of natural right than it will any other wrong-doer.

The charge of the court below as given to the jury, when tested by these principles, we think contains no error. The first proposition which it asserts is, that if the defendant had neglected to perform his duty, and the overseer was proceeding to chastise him for his disobedience, and the defendant thereupon resisted him, the latter had the right to use so much force as was necessary to overcome such resistance; and if the defendant in this conflict between the overseer and him, drew his knife and stabbed the overseer with the intent to kill him, then he was guilty. This proposition as thus stated is undoubtedly correct. The court in its charge limited the right of the overseer in the employment of force, to overcome the resistance of the defendant, to the point “short of taking life or limb.” The charge would have been correct even without that qualification. For we have already aboved stated that, if the slave is in open hostile rebellion against the master, and is resisting his legal authority by physical force, the master has the right to employ so much force as shall be sufficient to overcome such resistance.

The second proposition asserted by the charge is, that it was not necessary that the defendant should have engaged in this conflict with the fixed design of killing the overseer, in order to render him guilty; but that if, after the conflict commenced, and the defendant was resisting the overseer, the defendant drew his knife and stabbed the overseer with tbe intention of killing him, he was guilty. This proposition also, we think correct. The converse of it goes upon the hypothesis, that the offence for which the defendant was tried, necessarily contemplates malice. We do not think this the proper construction of the statute creating the offence. Besides, the proposition announced by the court, we think entirely correct, even if malice had been an ingredient of the offence. The slave who is resisting the master’s authority by physical force, in a personal collision with him, is a wrong-doer; and if in that resistance he kills the master, he cannot reduce the crime from murder to manslaughter, by showing the fact, that in the commencement of the resistance he had no design to take life. The fact that he subsequently took life designedly would make the homicide malicious. The State v. Will, 1 Dev. & Battle 121.

The next proposition asserted by the charge is, that if the defendant, when the overseer ordered another negro to knock him in the head with an axe, was so much alarmed that his reason was dethroned, and he then made the cuts without any intention at all, or with the intention of cutting himself loose, he was not guilty. We see no error in this proposition of which the defendant can complain. It may be conceded, that the intention to cut himself loose was confined in the charge to the state of mind when the reason was dethroned; still there would be no error in the charge of which the defendant could complain, because there is nothing contained in it against him. It is entirely for him, as far as it goes. The objection is, that it does not go far enough, and announce to the jury the full extent of the defendant’s rights. But this objection we cannot here consider. It was the privilege of the defendant to have called for a fuller charge upon this point, and if he neglected to do so we cannot aid him. The sole question for us is, whether the charge contains error against the defendant ? We are clear that it does not.

What we have already said in reference to the second proposition announced by the court to the jury, necessarily disposes of the first and second charges prayed by the defendant. The propositions contained in these charges are simply • the converse of that there discussed; and, that being correct, these were correctly refused.

The third charge asked by the defendant seems to be based upon the idea that, although the defendant was resisting the authority of the overseer by actual force, still, if he believed or had reason to believe, that his life was in danger, or that some bodily harm was about to happen to him, he could, by virtue of his natural rights, justify the stabbing, although it was done with the intent to kill. This is in direct conflict with what we have above stated, in the preliminary part of this opinion; and we deem it only necessary to add here, that the charge was properly refused. The qualification of this charge as given to the j ury, was correct.

In reference to the action of the court in permitting additional testimony to be given to the jury, after the cause had been argued and the jury charged, we have but to say, that we consider it a matter entirely within the discretion of the court, and not revisable on error.

It appears by the bill of exceptions, that on the trial below, the defendant introduced a witness to prove his general character as a peaceable and obedient boy. “The court explained to the witness, that general character was what a majority of an individual’s immediate neighbors said or thought of him; and in order to enable a witness to speak of general character, he must either know what a majority thought or said of an individual, or he must have heard some one say what a' majority thought or said of him, as to his being peaceable and obedient; and that a witness might swear that he knew the general character of another person, without being able to recollect at the time he testified, the name of a single person he had heard speak of it; and if the witness had not such knowledge, he could not speak of the defendant’s character.”

“The regular mode of examining into the general reputation,” says Mr. Greenleaf, in laying down the rule for impeaching a witness, “ is, to inquire of the witness whether he knows the general reputation of the person in question, among his neighbors, and what that reputation is.” 1 Green. Ev. § 461. The rule as laid down by Mr. Phillips, in cases where the character of the prisoner is in issue, is as follows; “The inquiry must also be as to general character; for it is the general character alone which can afford any test of general conduct, or raise a presumption, that a person wbo had maintained a fair reputation down to a certain period, would not then begin to act a dishonest, unworthy part. Proof of particular transactions in which the defendant may have been concerned, is' not admissible as evidence of his general good character. "What, then, says the same author, is evidence of general character ? The best medium of proof is, by showing how the person stands in general estimation; proof that he is reputed to be honest, is evidence of his character for honesty, and the species of evidence most properly resorted to in such inquiries.” 1 Phil. Ev. 491. The court below went on to define what general character was, and asserted that it was what a majority of the individual’s immediate neighbors said or thought of him; and from this postulate, laid down a rule for the competency of the witness, to wit: That the witness must know what a majority of the person’s neighbors said or thought of him; or he must have heard some person say what a majority of the man’s neighbors said or thought of him. This rule, as laid down by the court, might, as we conceive, exclude witnesses perfectly competent to testify. It may so happen, that a man has a reputation well established, either good or bad, and yet, a majority of his neighbors may never have spoken upon the subject, or expressed their thoughts in any manner whatever. We do not understand it to be essential to the establishment of a reputation, good or bad, that it should be preceded by the expression of an opinion by a majority of the person’s neighbors. This rule, carried out in practical life, might cut off many a man from proving a character, who would otherwise be enabled to establish it. Many a witness, put upon the stand, might be willing to say, that he knew the general character of another, and would be willing to SAvear; but when his competency was tested by the rule laid down by the court, he might not be able to say that he knew what a majority of the man’s neighbors said or thought of him. There may not have been a majority who have expressed an ■opinion to the witness; nor may he be able to say, with positive knowledge, what a majority think; nor may he have heard any one else say what a majority said or thought, and yet himself be competent to swear what his general reputa tion is. A person’s position in a community may be so obscure that very few of his neighbors know any thing of him; his general character may be very circumscribed. To hold that he could not prove his general character, except by witnesses, who could swear as to what the majority of his neighbors said or thought of him, would be, to deprive him of the benefit of this species of testimony. We think the rule laid down by the books the safer, and we are not disposed to allow a departure from it. The question should be, whether the witness knows the general character of the accused, as a peaceable and obedient boy among his neighbors, or those acquainted with him; and the answer to this question must be the test of the competency of the witness.

It is true, the rule laid down by the court might, by one interpretation of it, and under certain circumstances, operate in favor of the accused. The word “ majority,” is usually understood in a less comprehensive sense than the word “general;” and, in a case of doubtful reputation, a bare majority might be sufficient to make the reputation good, when, by the regular rule, it would be equivocal. But this only shows the impolicy of departing from the well-settled rules of law, that are uniform in their operation. We have already shown that it might operate against the defendant.

It is insisted, however, that it does not appear from the record, that any injury was done the defendant by the rule laid down by the court. It is true, the record does not show any direct injury to the defendant; but it is not enough that no injury is shown by the record to have resulted to the party excepting to the ruling of the court. The doctrine recognized by this court is, that we will presume injury from error, unless the record itself rebuts the presumption, and shows affirmatively that no injury could have resulted from the ruling of the court to the party excepting. Ex parte Keenan, 21 Ala. 558; Frierson v. Frierson, ib. 549.

Whether any witness was excluded or not, by this ruling of the court, the record does not show; and the rule itself as laid down being wrong, we must here hold it error.

The witness, Mrs. Underwood, was correctly excluded. By reference to the above cited authorities, it will be seen, that when a witness is called to speak of the reputation or character of any one, tbe preliminary question is, whether he knows the general character or not. If he answers this question in the affirmative, he is competent; if in the negative, he is incompetent. Mrs. Underwood had not rendered herself competent to testify by her answer to this question. It is true, she stated that she had known the defendant from his infancy; but this may well be, and yet she may not know his general character. When character is in issue, individual opinions are, in general, not competent to be given to the jury. An exception to this rule sometimes obtains, when testimony of character is given, with a view of impeaching a witness; but in other cases, it is only knowledge of general character — the character which the man bears generally among the persons with whom he associates, and by whom he is known; in other words, his general neighborhood reputation — that can be given in evidence.

Eor the error above noted, the judgment of the court be low is reversed, and the cause remanded.