## Facts

- Simeon Souther, a Virginia slaveholder, was indicted for killing his enslaved man, Sam, in Hanover County.
- The indictment alleged a prolonged course of physical torture, including tying Sam to a tree with ropes, whipping him, beating him with a shingle (and compelling other enslaved persons to participate), striking and kicking him, applying fire to his body, and washing him with warm water steeped with red pepper.
- The indictment contained multiple counts describing different methods of torture; a consolidated count alleged the combined conduct.
- The evidence allowed competing inferences: Souther may have intended only punishment, but the severity and duration of the abuse supported an inference that death was intended.
- After an initial indictment was quashed on a demurrer to the Commonwealth’s defective replication to a plea in abatement, Souther was reindicted without a new examining-court proceeding.
- A jury convicted Souther of second-degree murder and fixed punishment at five years’ imprisonment.

## Issues

1. Whether a slaveholder’s willful and excessive whipping or torture of an enslaved person resulting in death constitutes first-degree murder even without a specific intent to kill.
2. Whether an examining court may sign a bill of exceptions, and if so, whether it becomes part of the trial record.
3. Whether quashing an indictment due to defective pleadings on a plea in abatement bars a later indictment based on the same examining-court proceedings.
4. Whether juror per diem compensation in a criminal case may be taxed as costs under the governing statute.

## Decision

- The Supreme Court of Appeals of Virginia affirmed the conviction and the challenged procedural rulings.
- The court held that killing a slave by willful and excessive whipping is murder in the first degree even if the master did not specifically intend to kill.
- The court held an examining court has no authority to sign a bill of exceptions; any such bill is not part of the record for appellate review.
- The court held that quashing an indictment after a defective replication to a plea in abatement does not bar a subsequent indictment founded on the same examining-court proceedings.
- The court upheld taxation of juror per diem compensation as costs in the prosecution.

## Legal Principles

- The killing of an enslaved person by a master through willful and excessive whipping or torture resulting in death is first-degree murder, notwithstanding a claimed lack of specific intent to kill.
- The nature, severity, and duration of deliberate violence may support the inference of malice and the mental state required for murder.
- An examining court is not a court of record for purposes of preserving legal rulings by bill of exceptions; any such bill is a nullity in the trial record.
- Quashing an indictment for pleading defects on a plea in abatement is not an adjudication on the merits and does not bar reindictment based on the same preliminary proceedings.
- Statutory juror per diem in criminal cases may be included in taxable costs of prosecution.

## Conclusion

The court affirmed Souther’s conviction, holding that a master who willfully inflicts excessive and cruel punishment on an enslaved person causing death commits first-degree murder even absent an avowed intent to kill, and it also sustained procedural rulings permitting reindictment after a quashed indictment, excluding examining-court bills of exceptions from the record, and taxing juror compensation as costs.


Souther v. Commonwealth, 48 Va. (7 Gratt.) 673 (1851)