People v. Philips — 1 Wheel. Cr. Cas. 155

Majority

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The People vs. Nathaniel R. Philips. The People vs. Eseck Wardle.

Headnote

Assault and Battery.

The defendant in the above cases were put upon their trial, charged with committing an assault and battery upon John^tlasper Defloor, on the 9th of December, 1822.

p. 156

The author!ty of a master over his personal be cannot delehis Journeyman to chastise him,

It appeared, by the testimony of the prosecutor, that he was the apprentice of Mr. Philips, and that Wardle was foreman of the shop: that on tho 14th of August Wardle came into the shop after dinner, and said some of the boys in the shop had stolen his tobacco out of his chest, and • r that they were a set of thieves, &c.: that the prosecutor as]ce¿[ w]10 was a thief. Wardle .answered that he was a thief, the prosecutor then replied that he was a thief, Wardle then came up, and caught him by the hair of his head, and struck him several times; the prosecutor then paught up a chisel, and threatened to protect himself, but he was induced to lay it down by the command of "VVardle, who threw him over the wash-stand, -

The prosecutor further testified, that Philips, his master, came in shortly after, and on the same day told him he must prepare himself for a flogging: that. Philips, in company with Wardle, took him into the cellar, and there attempted to chastise him, but meeting with some resistance, he told Wardle to get a rope to tie him; he procured a bed cord, and his hands were tied behind his back. In this state he received such chastisement as his master thought proper to give him. He was so ' severely beaten as to leave.the marks upon him for several days: his arms and hands were much cut, and his thighs and legs were considerably larcerated; his wrists, around which were bound the cords to tie him, were considerably inflamed. Upon these facts being made out, Maxwell, Wilkins and Zunts, counsel for the people, rested the case.

Price and D. Graham, counsel for both defendants,

asked the prosecutor his name, he answered it was John Jasper Delfon, when it appeared in the indictment to be Defloor, an objection was then taken by Price^ to the variance in the evidence, from the name set forth in the

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indictment: alleging it was such a variance as could be considered fatal by the Court: and cited the case Byrne, who was indicted by the name of Byne ; an objec1 tion was taken to the indictment, on account of the variance, and it was held fatal by the Court, and that the defendants. if found guilty, or were acquitted on this in - ' dictment, might be again indicted by the prosecutor on true name.

Maxwell

replied at some length, and contended that where there was sufficient to designate the name, it was sufficient, that it was uncertain which way the name was pronounced.

The Court held it a fatal variance from the indictment, but ordered the defendants to find sureties each in the sum of $500 for their appearance from day to day, to answer to a new indictment to be preferred against them.

Price then observed that he would prefer to wave the objection, and go oil to trial, than to comply with the conditions prescribed by the Court. The Court ordered the trial to proceed.

The defendants offered testimony to prove that the prosecutor was impertinent and saucy to his master and foreman: that he had refused to obey Wardle as foreman of' the shop; that he had threatened to cut or stab him with a chisel: that when Mr. Philips came into the shop shortly after the scuffle with Wardle, the prosecutor was cursing and swearing, and conducting himself in the most violent and outrageous manner, brandishing a stick, and threatening Wardle. That he was dishonest, his master having detected him in working up some trifling stuff, to make a box, without his consent, and that he was a young man of a vicious disposition : that he had chastised him with a small riding whip, which was now exhibited to the Court; and that it was impossible, from the nature of the

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instrument used, that the chastisement could have been , cruel and excessive: and that he was a kind master to his apprentices, &c.

The counsel for the people" then examined witnesses, proved that the prosecutor was a young man óf a peaceable disposition and of good morals, and rested.

The case was summed up by D. Graham, for the defendants, and by Wilkins for the people.

It was contended for the defendants, that by the evidence it.appeared that the prosecutor was of unruly and ungovernable passions: that the important relation of master' and apprentice would be sensibly affected by a conviction : that the policy of the community and the good of the individuals required that protection of the master that" would ensure his safety from such attempts on the part of the apprentice : that the weapon used on this occasion was a proper one, being a small riding whip, and that its case was not disproportioned to the offence committed.

It was replied on the part of the people, that so far from there being an offence to warrant such a chastisement, there was no offence at all, or if any, a very venal one ; that the rights of the apprentice were as important and sacred as those of the master; that apprentices were not slaves, to be treated according to the capricious feelings and angry passions of their masters, but ought to be respected and treated with the same tenderness as a parent would treat his child. That it appeared clearly, by the evidence, the chastisement was immoderate: that even admitting the disposition of the apprentice was bad, and his passions turbulent, no occasion could excuse such unmerciful beating: that the instrument used, was by no means a proper one, and that whatever might be the rights of the master, it was certain he could not delegate them to his foreman, &c.

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The Court explained the law to the jury, to be the same between the master and the apprentice as between the parent and child, that the master had a legal right to chastise his apprentice on a proper occasion and in a proper manner, but he must take care that the be not immoderate, and that it is for a lawful cause; observing that the necessities of society compelled a considerable portion of the community to put out their children to learn some useful trade for tjieir support; that it was a delicate relation, and was treated with care and circumspection by the law, that no advantage might be taken of tender years and inexperience; that the father who parted with the custody of his child, never supposed, that he granted the master a power (which he had not|j to abuse i . F him.

The court further observed, that the authority of the master over the apprentice, was strictly personal; that he had no right to direct or permit his foreman to chastise him for any offence whatever: that in this case it appeared that Wardle struck the prosecutor in the first part of the affray, and tied him for the master to whip, in the last.— This was unjustifiable, it was an assumption of right the master could not give. After a statement of these principles of law, his Honor the Recorder left it to the jury to say, upon the facts, whether the weapon used was a proper one, whether the occasion was such a one as called for its use, and whether the chastisement was not immoderate.

The jury retired, and in a few minutes brought in a verdict of guilty against each of the defendants.