LUKE, A SLAVE, PLAINTIFF IN ERROR, vs. THE STATE OF FLORIDA

Decision of the (Florida Supreme Court) term held at Jacksonville, 1853

1. The law of Florida discriminates between free whites citizens and persons of color, whether bond or free, in the mode and decree of punishment for the same offences ;the first name being amenable to the act of February 10, 1832, while the latter are provided for in the act of November 21, 1828.

2. The maxim of "legis posteres priores contariae abrogant" is not applicable to cases where the precedent act is special or particular, and the subsequent act is general, the rule being that the later general act does not work any repeal of the former particular statute. Hence it follows that the act of november 21, 1828, to relation to crimes and misdemeanors committed by slaves, free negroes and mulattoes is not repealed by the act of February 10, 1832, in relation to crimes and misdemenors generally.

3. Slaves and free persons of color may be guilty of may of the offenses which may be committed by white persons; in such case, it is an offence at common law, the indictment must be under the act of 1828, because this statute regulates the punishment, and if it is an offence created by the statute of 1832, or any other act a slave or free persons of color can commit, the indictment should be under both statutes, that which creates the offence, and the act of 1828, which proscribes the punishment.

Error to the Circuit Court of St. John's county.

This was an indictment found by the Grand Jury of St. John's county against Luke, a slave for maliciously wounding animals.

The following statement of facts was greed upon by the solicitor for the State and counsel for the prisoner, viz:

"That a negro driver of Joseph M. Hernandez, in searching for certain stray mules, the property of his said master, found one of his said mules, dead upon the road leading from his master's plantation to the plantation of Abraham Dupont, and two others badly injured with gun shot wounds, of which injuries they subsequently died. The mule was shot. That witness traced the mules to the plantation of said Dupont, prisoner's master, by the blood upon the ground, and meeting with prisoner, asked him if he knew who had shot said mules? Prisoner replied that he had shot them, and was ordered so to do by his master---that the mules had come to his, prisoner's garden, in an inclosed field, and destroyed it, that he had complained to his master thereof, and asked him what he should do if they came again, and that his mater told him to shoot them, and he had done so. Witness further stated that prisoner had told him that the mules were in the habit of troubling his master's plantation' an committed no act for which he should be criminally punished---for that the shooting the said mules as charged in the indictment was not done malicious, or could be by him, he, prisoner, being a slave, and acting under the control and direction of his master---which instruction the Hon. Thomas Douglas, Judge of said court, declined to give, but having held the same under advisement, reserved the question. Thereupon the jury having rendered a verdict, the court suspended the sentence the sentence until the following term of said court, and on the 23d day of August, 1852, refused the instructions asked by the prisoner's counsel. Whereupon prisoner's counsel moved an arrest of judgment and for a new trial, and assigned the grounds aforesaid, which motion was overruled by the court, and sentence pronounced---to which rulings prisoner's counsel objects, and excepts and alleges the same as error.

THOMPSON, J.

Two questions are presented by this record for the consideration of the court. The appellant, Luke was indicted under the Act of 1832, for malicious mischief, in killing sundry mules, the property of Joseph M. Hernandez.

The only evidence against the prisoner, as appears by the bill of exceptions, was his own admission, that he had killed he cattle by the direction and command of his master, because their having trespassed upon the plantation of the latter.