#### STATE *vs.*DANIEL McDONALD.

If a man- deliberately kill another to prevent a mere trespass on his property, (whether that trespass could or could not be otherwise prevented,) he is guilty of murder.

INDICTMENT for muRDer, tried before bis Honor, Judge Dick, at tbe last Superior Court of Bladen.

Tbe charge was for tbe murder of one Neil Eerguson. Elora McDonald, tbe mother of the prisoner, and also the mother of tbe wife of the defendant, had lived for many years with her son, the prisoner, upon the plantation where tbe homicide was committed. About two or three months before this event she removed from the house where she had lived, to that of the deceased, leaving tbe prisoner in tbe sole possession of the first named premises. The deceased occupied a part of the same plantation with the prisoner, agreeing to cultivate corn on it for his mother-in-law. An agreement was made between the prisoner and the deceased to run a dividing fence between their respective parts. In making this fence, which was done by them jointly, the rails of one side of the lanes which was on the-part in the. possession of the deceased, were used. Along this old lane there were piles of dirt raked up for manure.-

One *‘Daniel Ferguson,*a son of tbe deceased, stated, that on the day of the homicide, he went, by the order of his father, tp haul out the manure; that while loading his cart hé saw the .prisoner sitting in the door of his dwelling, some ten or fifteen paces off, who told him not to take the manure. About this time the deceased came up, and the prisoner asked *20liim if he had instructed witness to haul off the manure; to which he replied, that he had. The deceased then asked the prisoner, who made the gap in the dividing fence, to which he replied, it was a negro woman. The witness then moved off with his cart, leaving the defendant still sitting in his door and the deceased standing near the gap in the dividing fence; after proceeding about sixty paces he heard the report of a gun, and on looking round, saw his father falling on the rails of the fence taken out for a gap, and the defendant going into his house with his gun in his hand. At the request of the deceased, the witness dragged him into a shade near by. A negro woman asked the prisoner if he had given the deceased any notice that he was going to shoot him ; to which he replied, yes, my gun snapped.

*Catharine*Ferguson, the widow of the deceased, testified, that when she and her children got to her husband he was not dead, but he could not speak. The defendant said he had killed him, and if his gun was loaded, he would lay her by the side of him. The children of the deceased were crying around him, when the prisoner came out of his house with a stick in his hand and ordered them off. Witness directed a negro woman to wet the lips of the deceased with water; the prisoner struck her a blow on the head with his stick, which brought her to her knees. He struck her a second blow on the head. He then stood over the body with his stick in hand, and ordered them all off.

*JSoh&rt Toler*said, that when he arrived, about an hour after the discharge of the ,gun, the deceased was dead. The prisoner called him to him, and asked him if it was not a shocking come off, to which witness replied, it was. Defendant then asked, if the decreased was dead, to which he answered, that he was. He then said I shot him. Witness asked him why he did it. He replied, “ because he had promised to put up a gate and had not done it.” Witness said it must have been liquor that caused it. Defendant said no, it was not liquor, for he had determined to kill him for soma time past.

*21*John, B%t,d&*was next examined. ■ ITe stated tbat about two weeks before the homicide the defendant was at witness’s house, when he said, Neil Eerguson was a mean man, and had ruined him by taking his mother away from him. Witness Replied, that *“*he thought it was best for the old woman to have Ferguson’s wife and daughter to wait on her,” when defendant again said, *“*Ferguson was a mean man and should not live two weeks. ,1

Defendant offered no evidence.

Defendant’s counsel asked the vCourt to instruct the jury, that the hauling away of the manure w^as a .trespass, and being done by the command of the deceased, it amounted to legal provocation, and mitigated the killing from murder to manslaughter. The Court declined ■ giving such instruction; for which defendant’s counsel excepted.

The Court allowed the witness, Daniel Ferguson, to state tlie question propounded to the prisoner by the negro woman, which was also excepted to.

Yerdict, guilty of murder. Judgment and appeal.

*Attorney General*(Bailey) and Winslow, for the State.

*White,*for the defendant.

Battle, J.

One of the grounds upon which the motion for a new trial was made in the Court below, to wit, that the witness, Daniel Ferguson, was permitted to state that a negro woman asked the prisoner if he gave the deceased any notice before he shot him, has been properly abandoned in the argument here. The State certainly had a right to prove the declaration of the prisoner, whether called out by a question from a negro or any other person.

Hie other ground assumed for the defense, and which alone is relied upon in this Court is, that at the time when the prisoner shot and killed the deceased, the'latter was in the act of committing a trespass by carrying off his manure, and that thereby the homicide was mitigated from murder to manslaughter. For this position, the counsel cited Hale’s P. C. page *22485, where it is said, that *“*if A, pretending title to goods, take them from B, B may justify beating A, but if A dies, it is manslaughter only.” ■

Whether the deceased was, in fact, committing a trespass upon the property of the prisoner at the time when he was killed, and if he were, whether the prisoner could avail himself of it, as he assigned a different cause for the killing, it is unnecessary for us to decide. Admitting both of these en-quiries to be decided in favor of the prisoner, the homicide is still, according to the highest authorities, murder, and murder only. *State*v. *Morgan,*3 Ire. Rep. 186. See also Wharton’s American Law of Homicide 185, where Hale, Hawkins, Poster, and many adjudicated cases are referred to. There will also be seen an explanation of the cases like that cited by the prisoner’s counsel from líale. <£ To extenuate the offense in such case, however, it must be shown that the intention ^was not to take life, but merely to chastise for the trespass, and to deter the offender from repeating the like, and it must so appear. For, if A had knocked out the brains of the deceased with a bill, or hedge-stake, or had given him an outrageous beating with a cudgel, beyond the bounds of a sudden resentment, whereof he had died, it would have been murder.” The doctrine on this subject is so clearly and forcibly stated by Judge GastoN, in delivering the opinion of the Court in the above cited case of the *State*v. *Morgan,*that we beg leave to refer *to*it, and to adopt it as a part of our opinion in the present case. *“*It is not every right of person, and still less of property, that can lawfully be asserted, or every wrong that may rightfully be redressed by extreme remedies. There is a recklessness — a wanton disregard of humanity and social duty in taking, or endeavoring to take, the life of a fellow being in order to save one’s self from a comparatively slightwrong, which is essentially wicked, and which the law abhors. You may not kill because you cannot otherwise effect your object, although the object sought to be effected is right. You can only kill to save life or limb, or prevent a great crime, or to accomplish a necessary public duty. Thus, an officer, acting *23under a legal process, has a right to arrest the person against whom it is directed, and to retake him if he break custody, and for such purpose he may, 'and ought to, use necessary force ; yet, if the process be in a civil case, or a misdemeanor only, and the officer, although he cannot otherwise arrest or retake his prisoner, intentionally kills him, it is murder. 1 Hale 481 ; Foster 271 ; 1 East P. C. ch. 5, secs. 306, 307. The purpose, indeed, is rightful, but it is not one of such paramount necessity, as to justify a resort to such desperate means. So, it is clear, that if one man deliberately kill another, to prevent a mere trespass on his property- — whether that trespass could or could not be otherwise prevented — he is guilty of murder.”

Let it be certified to the Superior Court of Bladen county, that there is no -error in the record.

LW Cm?,tam. Judgment affirmed.