Bumpus v. Fisher

• Decision Date: 01 January 1858
• Citation: 21 Tex. 561
• Parties: JAMES BUMPUS v. JACOB FISHER AND ANOTHER.
• Court: Texas Supreme Court

21 Tex. 561

JAMES BUMPUS

v.JACOB FISHER AND ANOTHER.

Supreme Court of Texas.

1858.

A white person may be indicted for an assault and battery upon a slave under the general provisions of the criminal law; the act relating to the “cruel treatment of slaves” more appropriately applies to injuries committed by some one having control of the slave.

Justices of the peace have jurisdiction to hear and determine cases of assault and battery committed within their counties, when no deadly weapon is used or attempted to be used.

Where a person was tried and convicted by a justice of the peace for laying violent hands on and unmercifully whipping and abusing a slave, and it appeared that the fine was within the jurisdiction of the justice, that the charge had no technical reference or pertinency to the act relating to the “cruel treatment of slaves,” not following the words of the statute or showing that the party accused had any control over the slave; that no objection was made or question raised, on the trial before the justice, in relation to jurisdiction or to the particular statute under which the accused was charged, and the entry of conviction containing nothing repugnant to, or inconsistent with jurisdiction in the justice, it will be presumed, in the absence of other evidence, that he had jurisdiction of the case tried, rather than that he had not.

In such case, even if the facts proven amounted to cruel treatment and would have authorized an indictment for that offense, no malice or corruption being shown, the justice would not be liable; for that would have been a mistake of judgment while acting in a judicial capacity.

See this case in relation to the general powers and responsibilities of justices of the peace.

Appeal from Upshur. Tried below before Hon. C. A. Frazer.

The material facts are stated in the opinion.

W. P. Clark and Chilton & Warren, for appellant.

P. Murrah and J. L. Camp, for appellee, cited Nix v. The State, 13 Tex. 575.

ROBERTS, J.

This is an action of malicious trespass and false imprisonment, brought by appellant against appellees.

Appellees pleaded that Dupree was a justice of the peace, in Upshur county; that Fisher made an affidavit before him, containing a charge against said Bumpus, that “he did on the 13th September, A. D. 1856, lay violent hands on a negro slave, Alfred, a man, and unmercifully whip and abuse said boy;” that a warrant was issued by said justice on said charge, by which Bumpus was arrested and brought before him, and arraigned for trial; that Bumpus having demanded a jury, they brought in a verdict finding him guilty of the charge, and assessing his fine at forty dollars, which was made the judgment of the court, whereupon said plaintiff was ordered into the custody of the constable until said fine and the costs were paid, and that if he paid any such fine and costs, as charged in the petition, it was done in satisfaction of said judgment. The exceptions of plaintiff to this answer of defendants were overruled, and the jury having found a verdict for defendants, and plaintiff having moved for a new trial, and given notice of appeal, it was agreed that the facts submitted to the jury on the trial were in conformity to the said plea.

It has been decided by this court that a white person may be indicted for an assault and battery upon a slave, under the general provisions of the criminal law; and that the act relating to “cruel treatment” of slaves more appropriately applies to injuries committed by some one who has the control of the slave, and does not prevent the operation of the general law of assault and battery, in its application to a person inflicting an injury on a slave, who has no such control. Nix. v. The State, 13 Tex. 575. The statute expressly confers on justices of the peace jurisdiction to hear and determine cases of assault and battery, committed within their counties, where no deadly weapon was used or attempted to be used. Hart. Dig. art. 1712. If the charge upon which plaintiff was tried was simple assault and battery, the justice clearly had jurisdiction, and the facts showing no malice, he would clearly not be liable.

On the other hand, if the charge was under the act which makes it indictable in the district court to “cruelly or unreasonably treat or abuse a slave” (Hart. Dig. art. 2587), the justice would not have jurisdiction to hear and determine, by final trial, but only to inquire and bind over to the district court for trial there. Hart. Dig. art. 1704.

Under neither view of the case can Fisher be liable, for he had a right to make the complaint under oath, under either law; and it does not appear that he did anything further. So too the justice, under either view, was not liable for issuing the warrant of arrest, for he had power either to try or bind over the party, accordingly as the facts might be shown to be. The justice's liability commenced then, if at all, when he rendered the judgment on the charge, and ordered the plaintiff into custody of the constable until the fine and costs were paid. He could legally make such order in a case where he had jurisdiction to try it; that is, he had power to commit the party upon default of payment. Hart. Dig. art. 1715.

The question then arises, do the facts, stated in this plea, show that the plaintiff was tried and committed upon a charge of which the justice had jurisdiction, it being for laying violent hands on, and unmercifully whipping and abusing the slave. (Stated in the warrant to be the slave of Jacob Fisher.)

It is to be remarked, 1st. That the amount of the fine is within the jurisdiction of the justice, and the charge includes facts, which constitute a simple assault and battery. In the case of Nix v. The State, 13 Tex. 575, the indictment charged the defendant, Nix, with having, with a drawn knife, cut, bruised and wounded, beaten, illtreated, etc., the slave of another. And, notwithstanding the aggravation, it was treated in both the district and supreme courts as a charge of assault and battery, and not as a charge of cruel treatment under article 2587. The facts in that case certainly present as great enormity, as those necessarily imported in the charge in this case, with the addition of the use of a deadly weapon in that, which does not appear in this.

2d. That the charge in this case has no technical reference or pertinency to the act relating to cruel treatment to slaves, as it does not follow the words of the statute, and as it does not show that plaintiff had any control over the slave. In confirmation of this too, the plaintiff, in his petition, complains that he was arrested and tried on a charge: “that your petitioner did violently lay hands on Jacob Fisher's boy, Alfred, and of maltreating the slave boy, Alfred, which charge your petitioner avers to be untrue.”

The description of the charge, as given by the petition, differs from the language of the statute, further than that contained in the plea, and shows that the plaintiff did not understand the charge as having a specific reference to the statute concerning cruel treatment to slaves.

Again, there was no objection taken, or question raised, on the trial before the justice, in relation to the want of jurisdiction, or in relation to the particular statute, under which the plaintiff was tried. And if the justice had had reference to this statute on the trial, he would most probably have read it to the jury, to enable them to determine whether or not the party charged was guilty, and to instruct them as to the punishment, when he must have seen that the fine exceeded his jurisdiction, and also that jurisdiction of that particular offense was expressly given, in the same clause, to the district court.

Now, if the entry of the judgment had been regularly made out in the form of a conviction for an assault and battery on the slave, it not being inconsistent with the charge under which the plaintiff was arrested, and there being no malice or corruption shown, the justice would not be liable, even if the facts proven amounted to cruel treatment, and would have authorized an indictment for that offense: for that would have been a mistake of judgment, while acting in a judicial capacity, in assuming to act within the recognized scope of his jurisdiction. Thus it was held that a justice was not liable for having, upon complaint made to him, caused the arrest of a person, who was circulating an abolition petition on Sunday, under an act, authorizing the justice to impose a fine on any one who should be guilty “of any servile laboring or working on that day.” Whether the circulation of the petition was ““servile laboring or working,” was a question which the justice had to determine, and for an error of judgment, without malice or corruption, he was not responsible. Stewart v. Hawley (and English case...