Underwood v. State , 25 Ala. 70 ( 1854 )

GOLDTHWAITE, J. —

The section of the Code on which the indictment was framed, reads thus : “All persons, to the number of two or more, who abuse, whip or beat any person, upon any accusation, real or pretended, or to force such person to confess himself guilty of any offence,” ¿zo. — Code, § 3108. To make out the offence contemplated by the first part of this section, it is essential that the accusation should be the moving cause of the abuse or violence. The term “ accusation” must not' be confounded with the act on which it is based. It means something distinct from, and independent of it. If two persons were to bring a charge against a third, and beat Trim upon provocation of the act complained of, that is very different from inflicting the same violence upon him, not from the provocation of the act itself, but because they believed him guilty of the accusation brought against him, for the commission of it. The one is simply an act of private vengeance, while the other implies, to some extent, the usurpation of legal authority — to try and punish upon a charge — what is commonly called lynching.

In the present case, if the violence used towards the prosecutor was upon the provocation that the son of one of the parties had been whipped by him, the defendant would have been guilty of an assault and battery, but not of the statutory offence; while, on the other hand, if the accusation was the cause, then a conviction on the indictment would have been proper. The charge of the court was erroneous, for the reason that it did not observe the distinction we have noticed.

Judgment reversed, and cause remanded.