The opinion
The Couet
(nem. con.) overruled the motion in arrest of judgment, but granted a new trial, (Theuston, J., contra1,) upon the doubt whether the circumstances did not excuse the homicide.
Upon the new trial, the circumstances, as they appeared in evidence were these:
Jackson, the deceased, and one Nightengale, had beaten the prisoner severely on shore, who escaped from them and fled to his master’s boat, which was then in his custody, and under his command, by the authority of his master. They followed him down to the wharf, and Jackson dared him to come on shore, that he might lay his hands on him again.
*540 The prisoner refused, and told Jacks on to stand off, and not to come on board ; and if he did, he would shoot him. The warning and threat by the prisoner were repeated. Jackson said, “shoot and be damned,” and jumped on board. The prisoner, who was standing with a gun in his hand at his cabin door, about fifteen feet from Jackson when he jumped on board, instantly shot and killed Jackson.
The Court, at the prayer of the prisoner’s counsel, instructed the jury, (Tbruston, J., contra,) that if they should be satisfied, by the evidence-, that the prisoner was and is a slave, and at the time when, &c., had the custody and command of the boat in which, &e., by the authority of his master; and that the deceased, Jackson, entered upon the boat after being warned by the prisoner not to do so, and with intent to do a great bodily harm to the prisoner; and, after being in the boat, actually assaulted the prisoner with intent to do him such great bodily harm ; and that the prisoner had good ground to apprehend, and did fear, that the said Jackson would do him such harm, and that the prisoner then killed the said Jackson by shooting him, &c,, such killing amounted only to excusable homicide.
And also, at the prayer of the counsel for the United States, instructed the jury (Morsell, J., doubting,) that the jumping on board the boat, under those circumstances, was not an actual assault by the deceased, Jackson, on board of the boat.
Morsell, J.,
thought that the assault and beating on shore, and the following of the prisoner to the boat, and the threats used by Jackson on the wharf, at the time he jumped on board, evincing the continued purpose of again beating the prisoner, were sufficient evidence of an assault on board of the boat.
The jury could not agree, and by consent were discharged, and the cause continued to the next term, when the prisoner was again tried and convicted.
It being slated and admitted that the prisoner is a slave, the sentence was, “ that he be burnt in the left hand, and publicly whipped with twenty-five stripes.”
See the Act of Congress of March 3, 1801, supplementary to the Act concerning the District of Columbia, § 3, [2 Slat, at Large, 115,] and the Act of Virginia of December 17, 1792, c. 103, § 24, p. 190; and the case of United States v. Clark, in this Court, at November term, 1825, (2 Crancb, C. C. 620.)