(after stating the case). The first objection cannot be sustained. The evidence proposed and excluded, if it had been received, would not have tended to prove any legal excuse for the excessively severe whipping — beating— the defendant gave the boy, his apprentice; nor would it have tended to rebut or disprove malice implied, and which the jury might infer from such whipping. If the boy were incorrigible, as alleged, this did not warrant the cruel whipping the defendant gave him, certainly if it were prompted by a malignant heart.
Nor can the second exception be sustained. The evidence excluded was plainly irrelevant as to any principal ground of defence relied upon ; and it was not competent to impeach the boy, who had been examined on the trial as a witness for the prosecution, without first interrogating him as to the unfriendly declarations it was suggested he had made against the defendant. It was reasonable and just that he should have been apprised on the cross-examination of the particular attack to be made upon him. -It might be that he would have *711denied that he used the language attributed to him, or he might have made excusatory and satisfactory explanation of what he had said. The rule which requires the witness, whom it is proposed to attack, to be cross-examined as to imputed hostile declarations or acts as to a party to the action, before evidence of the same shall be given, with a view to impeach, is reasonable, and settled by numerous decided cases. State v. Patterson, 2 Ired., 346; Pipkin v. Bond, 5 Ired. Eq., 107; Edwards v. Sullivan, 8 Ired., 302; 1 Whar. on Ev., §566. If, by inadvertence or misapprehension, the defendant failed to so cross-examine the witness, he might, with the permission of the Court, have been re-called and examined for that purpose.
The Court was not in error in refusing to instruct the jury, that upon the whole evidence taken as true, the defendant was not guilty. Exactly' what measure of corporal punishment a master may lawfully or exeus ibly inflict upon his apprentice is not settled; but conceding in this case that the defendant might in good faith have given the boy reasonable chastisement, because of his ladies or incorrigibility, yet, if the whipping inflicted upon him was as cruel and merciless as the evidence tended to prove it was, the jury might well infer that it was done wantonly and maliciously; and in that case, the defendant would be guilty.
The instructions the Court gave the jury do not appear; no exception appears to have been taken in that respect, and nothing to the contrary appearing, the presumption is, they were correct — such as the evidence and the law applicable warranted. The burden was on the defendant to show the contrary.
There is no error. Let this opinion be certified to the Superior Court according to law.