#### STATE *vs.*JACOB JOHNSON.

A mere grudge or malice, in its general sense, is not sufficient to bring a case within the rule laid down in *Madison Johnson's*case, 1 Ire. Itep. 354; (referring the motive to antecedent malice rather than an immediate provocation:) to have that effect, there must be a *particular and definite intent to kill:*as if the weapon, with which the party intends to kill is shown, or the time and place are fixed on, and the party goes to the place at the time, for the purpose of meeting his adversary with an intent to kill him. These facts create a presumption of malice till rebutted by the accused.

But where A boars malice against B, and they meet by accident, and upon a quarrel, B assaults A with a grubbing hoe, and thereupon A shoots B with a pistol, the rule of referring the motive to the previous malice will not apply.

INDICTMENT for murder, tried before bis Honor Judge Bailey, on the last Spring circuit at Cumberland Superior Court.

The prisoner was indicted for the murder of one Jacob Stewart.

*Jacob*Williams, a witness for the State,deposed that the neighbors had assembled at the house of one Daniel Stone, to assist him in log-rolling and grubbing: that the prisoner came to the new ground, where they were at work, and spoke to the crowd: a little before sunset the deceased started home accompanied by the witness : they proceeded about eighty yards and stopped, when the prisoner came up : witness turned back in the direction of Stone’s house, and when he had proceeded about forty yards, heard the deceased and prisoner quarrelling. Pri*248soner cursed the deceased, and told him if he would come two steps, he would do something, which the witness did not understand: deceased replied, “if that is all you want you can have it,” and advanced about that distance, when the prisoner leaned back or gave back a little, and he heard the pistol fire: deceased raised his grubbing hoe and said, “you have killed me and I will kill you.” .The prisoner fled, and the deceased pursued him some eight or ten steps and threw the grubbing hoe after him, but did not hit him : the deceased then came towards the company and said, “ I am killed, I have got it in my breast, and he did it.” Some of the company called to Johnson and told him to stop, when he did so and came back : the deceased, in this time had fallen, and died in-about fifteen minutes after the discharge of the pistol: witness said, when the quarrel began, he turned back, and had got within thirty yards, at the time the pistol was fired. He further swore, that about a week before this occurrence, he was at the house of the deceased, and there met with the prisoner: they remained till after night, when the deceased told the prisoner .he could not stay there that night, for that he had the chicken pox and might give it to his children : deceased opened the door and told him to go, whereupon, prisoner went out. After getting into the piazza, he cursed the deceased, and told him if he would come out he would kill him; deceased did not go out and prisoner went off. On cross examination he said when prisoner told deceased, “ if he would come back, &c.,” lie -was about 8 or 10 feet from'the prisoner, and deceased advanced “ pretty peart,” with his grubbing hoe in his left 'hand : that the hoe was not raised higher than a man’s knees : the pistol fifed as he was advancing, and the bullet struck just above the left pap : said that there was ill blood between him (the witness) and the prisoner.

*Daniel Stone,*another witness for the State, testified that he was about sixty yards off when the pistol fired: did not see the prisoner raise the hoe, but immediately after the pistol fired, saw him raise it: prisoner fled, and deceased pursued him some eight or ten steps and threw the hoe at him: de*249ceased then walked a few steps and fell down. The prisoner had run *off*a short distance, but upon being informed that he had killed Stewart, returned to where deceased was tying. This was not more than five minutes after the firing of the pistol. Stewart died in about fifteen minutes after the wound was given. On cross examination, said, that at his house that evening, the two *appeared friendly.*Tie saw no evidence of hostility whatever. The wife of the witness washed for the prisoner: ' both this witness and the other (Williams) were brothers-in-law to the deceased.

*Nancy Spence*saw the prisoner on the morning of the day of the conflict, he then had two pistols and a bowie knife: she asked him what he intended to do with them, and he answered that he intended to kill somebody.

*Gynthia*Stewart, widow of the deceased, stated that the prisoner came to their house on the evening before the homicide, enquiring for the deceased: she told him where he was, (only a quarter of a mile off,) prisoner said he was going to Daniel Stone’s any how, and would see him. Prisoner said he wanted to see deceased and another man, and know-w-hat they were mad with him about: said he wanted to talk friendly. Prisoner then showed her a bowie knife, which from curiosity she requested to see. She asked him what he had such a knife for? Said he would like to give the old man two or three cuts with it. Said he would cut if they would rush on him. Witness remonstrated with prisoner about carrying-arms : prisoner listened to her and then got. up, remarking that “ when he was young they tried to keep him down, and couldn’t, and now before they should, lie would shoot and hang.” Prisoner sat eating potatoes with the witness : seemed friendly : was not at all excited, and witness had no apprehensions that prisoner would do mischief to her husband or any one else; if she had thought so, she would have gone to Stone’s and warned him.

*Elihu*Stone, (for the defendant,) swore that he was sixty or seventy yards off when he heard the parties quarrelling ; they were both angry; witness advanced towards them, and when *250within about twenty yards of them, lie stumbled and looked down to the ground, instantly, lie heard the report of the pistol ; he looked up and deceased was in two or three feet of the defendant; saw him raise his grabbing hoe; heard the exclamation, you have killed me. States about the flight and pursuit and the casting of the hoe. This witness being further questioned as to the conduct of the parties at the beginning of contest, said that “ when he stumbled the deceased and prisoner were eight or ten feet apart, that when he raised his eyes from the ground, and heard the report of the pistol, deceased was in two or three feet of the prisoner raising his hoe, that it was the deceased who advanced, for the prisoner had not changed his position. After a few minutes prisoner came up to where the deceased was lying and made an observation which was ruled out of the evidence.

*Mary Anne Stone,*wife of Daniel Stone, (for the defendant,) stated that when the prisoner came, he went into the house and enquired for a shirt, which she was to have washed for him, but it not being ready, he said he would wait for it that night; that lie wanted to go to a party next day. Witness also stated that she saw prisoner and deceased together that evening and they appeared friendly, she had no reason to suppose there was ill blood between them.

*Elizabeth Stone,*(for defendant,) stated that she passed by the parties when they were standing in the path, seventy or eighty yards from the house, and she heard prisoner say to deceased, llt Jacob,T want a word with you,” which was spoken in a kind and friendly manner : she passed on and before she had proceeded far, heard the report of a pistol: she saw the two together at the “ spell” that evening, and they appeared to her as friendly as most persons.

*Larry Smith,*(for defendant) stated that he was in the jail when the prisoner was brought there; that the same day, or the next, he saw a bruise on prisoner’s arm about two or three inches wide, and of a blneish purple color.

Upon the above evidence, the prisoner’s counsel asked the Court to charge the jury, that if they believed the deceased *251was rushing on the prisoner with liis grubbing hoe in such a position, as to induce the prisoner to believe that he would be immediately.stricken with that weapon, and if the onset was so sudden and fierce that the prisoner could not fly without endangering his life, then that he was guilty of nothing, but it was a killing in self defense.

*Secondly:*that if the deceased rushed upon the prisoner with his grubbing hoe in such a position, as to induce the prisoner to believe that he would be immediately stricken, and the prisoner could have made his escape, and did not, but drew and shot the deceased, it would be but manslaughter.

Iiis Honor declined giving the instruction asked for, but charged “ that if they believed the prisoner bore malice towards the deceased, and there was no reconciliation between them, (and this was on the prisoner to show) then, although the deceased might have given what, under other circumstam ces would have been a legal provocation, as if he had assaulted prisoner with the hoe, or had actually struck him with it, it would be murder if the prisoner killed him: for the law would refer the killing to the malice and not to the provocation.” Prisoner’s counsel excepted to this charge. Yerdict^ guilty of murder. Judgment and appeal.

*Attorney*General, for State.

*Banks*and Kelly, for defendant.

PeaesoN, J.

The Judge *charged*— “ if the jury believed the prisoner bore malice towards the deceased, and there was n© reconciliation between them, (and this lies on the prisoner to show,) then, although the deceased might have given, what, under other circumstances, would have been a legal provocation — as if he had *assaulted the prisoner with the hoe or had actually stricken him, with it*— it would be murder: for the law would refer the killing to the malice, and not to the' provocation.”

To this the prisoner excepts. There is error. His Honor-, no doubt,- gave these instructions upon what he conceived to *252be the principle settled by *State*v. *Madison*Johnson, 1 Ired. 354. We have heard that the decision in Madison Johnson’s case was not concurred in, by the profession. If.it is supposed to have established and settled, as a general principle, the doctrine laid down by his Honor, the disapproval of the profession is not at all to be wondered at. But in point of fact the decision in that case does not announce or settle any such general principle. ' Owing to the very wide range taken by the judges in delivering their opinions, and because both opinions are very long, it is rendered difficult to determine what general principle is announced and settled ; in fact, the circumstances under which any homicide is committed, are so numerous, and the details, in any one instance, differ so much from those attending any other case that has occurred, or that will hereafter occur, as to make it impossible to lay down any general rule or principle in regard to it. Eor this reason, the law does not attempt to trammel the action of the jury by any artificial or general rule, and it is left to .their good sense to say, from the evidence, whether the act of killing was done because of the present provocation, or because of a deliberate intent to kill, previously formed, and then and there carried into effect, the provocation being a mere circumstance collateral to this wicked intent, Which the prisoner would have carried into effect any how, or being a mere pretext, sought for as a cover to the wicked intent, previously formed and then acted on.

In *Madison Johnson’s*case, a witness swore that at dinner time of the day on which the homicide was committed, the prisoner said, “ he had bought powder and shot and intended to kill a man that night before the bell rang, and showed the pistol.” He did, with the pistol, kill a man that night before the bell rang, (9 o’clock.) The judge, in the court below, charged, if the jury were satisfied that the deceased was the object of this threat, and the prisoner went to the shop with 'the intention to provoke a quarrel with the deceased, in order to gratify his avowed vengeance, the killing -was murder, notwithstanding the provocation offered at the time. The *253charge was approved by this Court. GastoN, J., in concluding his opinion, says, “ In the case before us there is one thing which we can pronounce with certainty : If the prisoner did go to the place where he killed the deceased, *with intent to MU*him, (so the jury have found, and so, in our opinion, they were warranted to find,) there was no evidence, however slight, showing or tending to show, that this intention was abandoned before the act was done.”

. The principle settled by this decision, if the subject matter be' susceptible of any principle, is this: if A says he will kill B, with a weapon vdiich lie- then has, before a certain time, and the jury are satisfied, that in pursuance of this intent to kill, A goes to a place where he expects to meet B, and there kills him with the -weapon, at the time named in his previous threat, the killing is murder, notwithstanding B gave to A a legal provocation just before the killing, unless A offers some evidence, showing or tending to show, that he had abandoned his intention to kill. The point about which the judges differ, is whether there is or is not a presumption, in the absence of any evidence except the provocation, that the intent to kill had been abandoned *%*

There can be no sort of question as to the correctness of the principle thus stated : in fact, it would suggest itself to the good sense of every juror without any instruction from the presiding Judge. But this is altogether a different principle, from that laid down by his Honor in the case before us, viz: “ if A bears malice towards B, and they meet by accident, and upon a quarrel, B assaults A with a grubbing hoe, and actually strikes him with it, and thereupon A shoots B with a pistol, the killing is murder, because the law refers it to *tliejfremous*malice, and not to the present provocation, unless A can prove that there had been a reconciliation.”

A mere “ grudge,” or malice, in its general sense, is not sufficient to bring a case within the principle acted on in *Madison Johnson’s*case : there must be a *¡pa/rtiexdar*and *definite intent to hill—*as if the weapon with which the^party intends to kill is shown, or the time, and place are fixed on, and the *254party goes to the place, at the time, for the purpose of meeting his adversary and with an intention to kill him; so that the provocation is a mere collateral circumstance, and the intent to kill existed before and independently of it.

Por this error in the charge of his Honor, the prisoner is entitled to a *venire de novo.*

We express no opinion in regard to the alleged repugnancy in the two counts, because we take it for granted the objection will be removed by sending a new bill.

Pee OublaM. Judgment reversed.