Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1882-05-28

The case OF Henry d. Boone as. the State,
which excited considerable comment at the
time it was tried, has been finally decided by
the Supreme Court in the following
Opinion:
The defendant has been convictedsin two
cases of assault and battery. The Question:
| in each case are the same, arising Hen an
agreed state of facts. The defendanE Vas as
sistant warden of the State penitentiary and
IN charge of branch prison in Shelby
county, established by the lessees under The
act of the Legislature of the 26th OF March
| 1877. The persons assaulted we're convicts
| in said prison, and one of them refused to
obey the lawful orders given him to work
| and became mutinous and refused to work
or labor as he was required to do, and as
punishment the defendant struck said
| convict ten "licks' with whip or leather
strap. The other convict attempted to es-
cape from custody and was in the act of run
/ ming away, and for this was punished by the
defendant with fifteen ''licks" with the whip
| or strap. 1t is agreed that the punishment
in each case was moderate, and if lawful at
! all was not unreasonable or excessive. The
| question is, whether the defendant wss by
law, authorized to inhict punishment of this
character to any extent.
1t is argued that the authority must exist
| to enforce the judgment of the law SEN
iShCAHS lue COHNlCl 10 nSTu IN the pen
itentiary, otherwise by refusing to obey the
orders to work and submit to prison regula-
tions and discipline he might practically
defy the law. 1t is further ar
gaed that such means of enforc-
ing obedience upon the part of the
convict may be resorted TO, as has been rec
ognized by the common law, and that the
common law has recognized corporal pun
ishment one of its means. 1t is unneces-
sary to enter into a discussion of the COM
mon law authorities upon the subject, as we
think the matter is regulated by our own
statutes.
Under the head of "Police Regulations
of the Penitentary," section 55lS of the
Code provides that 'If any convict neglects
or refuses to perform the labor assigned him,
or willfully Injuries any of the materials, inn
plements or tools, or engages In conversation
with any other convict, or in any other
manner violates any Of the regulations
of the penitentiary, he may be punished
by solitary confinement for a period not
exceeding thirty days for each offense, at
the discretion Of the keeper or other person
acting in his place"
The next section provides that the solitary
confinement shall be upon bread and water,
unless the physician certify that the health
of the convict requires other diet.
Subsequent sections (5521 and 5522) pro-
vides that record be kept of such cases, and
if approved by the inspectors that five days
be added to the original term of imprison-
ment for each day Of solitary confinement
the convict has undergone, unless this pen
atty be remitted by the governor. Section
$500 provides that no Convict shall be pun
ished in any other way than is herein pro-
vided, except by the authority of the Board
Of Inspectors" That is to say, no other
punishment is 10 be inflicted than as
provided by the sections above referred
TO, "eXcept by the authority of the
Board of Inspectors" And to make the
matter more explicit section 5531 enacts
that "any officer who shall corporally pun
ish any convict without the prescribed au-
thority from the inspectors shall be by them
dismissed from Office"
We have examined the act of the 26th of
March, 1877, under which the lease of the
penitentiary and the convict labor was con-
summated, and find nothing in it repeating
or modifying the above sections of the Code
The act does authorize the establishment of
branch prisons and the employment of con-
victs at places other than the State peniten-
tiary, and as the Coard of Inspectors is by
the act constituted of the secretary of state,
| comptroller and treasurer, it may reasonably
be supposed that they are not expected to
attend the branch prisons and supervise the
| discipline of the convicts therein; still there
is nothing in the sct increasing the powers
| of the wardens, or other officers, in regard to
| hAO VI thC pIlbOuSIsJ III IdCl the
act seems to jealously guard againstthe dan
ger of the convict bsing subject to cruel and
inhuman treatment. 1t follows, therefore
that no convict can be punished otherwise
than provided by sections 5518, 55I9, 552I
and 1922 of the Code, except by authority
of the Board of Inspectors.
The agreed state of facts shows that
at is agreed that the Board OF In
spectors appointed by said act,
adopted the following rules and regula-
tions for the government of the convicts
which are marked exhibit A." but
the memorandum of the clerk shows
that the rules mentioned were not on file and
never had been" The agreement continues,
however, that it is conceded by the attorney
general that if the Board of Inspectors had
the right to adopt such rules the defendant
should be acquitted.
The regulations not being before us we
cannot know their import. We may, how
ever, Tor the argument, concede that they
profess to authorize the warden or deputy
warden to inhict corporal punishment in the
manner and to the extent indicated in this
case whenever, in his opinion, the conyicts
have been guilty of the offenses shown by
the agreed facts in this case.
We hold that the Board OF Inspectors can
not delegate such powers to the warden or
deputy-warden.
If other punishment is TO be inflicted than
authority of the board of inspectors, that is |
to say the board must award the punish
ment in each particular case They cannot |
prescribe general rules and regulations and |
empower the warden or keeper to determine
when in his opinion these rules have been
violated, and when in his judgment and dis |
cretion the additional punishment should be !
inflicted and TO what extent. The powers |
and duties of the board in this respect can
not be delegated.
The offense for which one OF the convicts
in this case was punished is specially enum-
Grated in section 551S of the Code and the
punishment pointed out in the next sections,
that is to say all the punishment that can
be inflicted by the warden and keeper with
out the authority of the Board of Inspectors.
1t would be inconsistent to say that the Board
of Inspectors may enact rules by which the
warden can inhict punishment directly for
bidden by the sections referred to- If the
warden was to be vested with such powers it
would have been conferred by the Legisla-
ture.
The offense for which the other convict
was punished is specially provided for in
section 5533 of the Code, and the msde of
punishment pointed out, that is to say, by
indictment for an escape, and hence it cannot
be held that the warden may for this offense