#### THE STATE *vs.*ELLICK.

If, on the liial oí . » indiotmint, witnesses arc examined by the State, and other witness's are oxamim-d by the accused to maintain his defence,

1 .and the Judge instructs the jury that if they believe the witnesses on either side, the accused' is guilty, this Court considers the charge only in its application to the evidence offered by the accused, and assumes every- „ thing to be proved on his part which a jury would be at liberty to in-, for irom that evidence.

If two men fight on a «¡ridden quarrel, with deadly weapons,' and one strikes the other a mortal blow before the person so stricken is prepared to use biB weapon, the killing is murder; and so it is *if any unfair advantage*be taken ; and if o*ie uses a slick and th« other a knife or a pistol, they do not *ñghtf airly*and on *equal terms,*and, therefore, the party killing is guilty'-of murder.

The cases of Gaither *vs.*Eeribee, 1 Winston, 815, and State ®.e. Norton, Id., 305, cited and approved. ’

This was an indictment' against Ellick, a slave, for the murder of another slave,. Cornelius, tried before Fkench, J., at Fall Term of Granville Superior Court, 1864.

*57Micajab, a slave, a witnea» on the part of the' State, gwore that one uight in the last summer, be bad a quarrel with-the prisoner, about the prisoner’s .having been attacked by a dog, a week before. lie and the prisoner fought — he thretf the prisoner down, and seeing the pris-erter feeling for his knife, lie left him — shortly afterwards he saw the prisoner seated on the door sill with the deceased ; he heard some words pass between the two, büt did not hear what they were. He saw the prisoner get up, and immediately afterwards the deceased arose, and as he rose, prisoner made a thrust at him with both hands, and witness saw the blow strike on the left side of deceased, who, immediately after receiving the blow, reached his hand inside the dpor and took a stick and knocked-prisoncr down. rfhe deceased died of the wound. The stick which the deceased used was admitted by the .State to be a deadly weapon. Other witnesses for the State swore to the same general eífect as Micajab.-

Witnesses were examined on the part of the prisoner, who testified to the facts stated-in the opinion of the Court.

The counsel for the prisoner requested the Court to charge the jury, that.if they had a rational doubt from the evidence, whether the killing ivas done with malice, that the prisoner was entitled to the benefit of that doubt, and they should find the prisoner guilty of manslaughter only. The Cpurt refused to give the instruction. The .counsel for the prisoner further requested the Court to charge the jury, that if the fatal blow was given by the f prisoner, after he was stricken with the stick by the der . ceased, that it was manslaughter, only. The Court declined to give the instruction, because there .was uo evidence to sustain it. The Court instructed the jury, that *58apon the evidence of the witnesses on the part of the State, or of th* prisoner, the killing was 'murder.

The counsel for the prisoner excepted to the charge of the Judge.

The jury found the prisoner guilty. And from judgment accordingly the prisoner appealed.

Attorney General for the State.

Eaton for the prisoner- — In substance and effect the Judge instructed the jury that according to the whole of the testimony and that of each witness, this was a case of ■ murder, and that there was no evidence, however slight, tending to prove a legal provocation. It is insisted, in behalf of the prisoner, that the charge is erroneous,, and. that it is in conflict with the act of! 796, and the views of this Court in the case of the State *vs.*Allen, 8 Jones, 257. In that-case the Chief. Justice, in delivering the opinion of the Court, uses these words : •“ A Judge is not at liberty to eaepress an opinion as to the sufficiency of the evidence. When there is a defect, or entire absence, of evidence, it is his duty so to instruct the jury ; but if there be any competent evidence, relevant and tending to prove the matter in issue, it is l' the true office and province of the jury to pass upon it; although the evidence may be so slight that any one will exclaim, *!*certainly no jury will And the fact .upon such insufficient'evidence/' still the Judge has no right to .put his opinion in the way, of the free action of the jury, even should ho deem it necesr sary to do so, in order to. prevent them from being misled by the arguments of counsel or their own' want of apprtf-hension.”

*59Before commenting on the evidence set forth in the bill of exceptions, I will malee a remark or two on the law of murder and manslaughter in connection with this case. .If a distinction of any practical importance is to be recognized between homicide committed with malice, and á killing where the fatal.act is the result of a sudden transport of passion which maylbe regarded as an incident tc human infirmity, if there be any substantial difference between a killing from the wickedness of the heart, anda killing under the influence of the ordinary frailties of our «ature, it must follow, upon principle, that an assault with a deadly weapon will extenuate a homicide to manslaughter, even though the party, slaying may use a deadly weapon himself.

What is an assault ? ' If A advances in a threatening attitude towards B to-strike him, and is stopped just be-* fore he is near enough for his blow to take effect, it is an» assault. Stephen vs.-Myers, English Common Law Reports, vol. 19, page 414. --This case is cited as authority by enlightened elementary writers. Seo Arch. Crim. Pleading, 411; G-reenleaf on Evidence, 3 vol,, 51. It is also referred to with respect and approbation by Judg« Gaston in the case ®f the State *vs.*Davis,. 1 ire., 125. If the law is truly stated in the case of Stephen *vs.*Myers it must follow,.upon principle, that if A reaches after a stick and turns round to strike B with it, who is already within. striking distance, it is an assault, though B may strike, him before he can aecomplish his purpose.

There is evidence in the statement, of the witness, Harriet, tending to «how that the deceased Committed an assault. with a deadly weapon, upon the prisoner imrnedi-' atcly before the mortal wound was given. She says, <£ths prisoner sat on the door sill by the deceased. Witness *60beard some words pass between them, but does not recollect whdt they were,' The prisoner got up first. Cornelius rose up and reached his hand inside the door and got his stick.- As ho was turning round prisoner struck him on the left side. Witness heard the rip.” The'prisoner, to use the language of the Court in the case of the State *vs.*Allen, has a right to insist that the testimony should be taken in the point of view most favorable to him ; and that if, in any aspect of the evidence, it; is consistent with his bqing guilty of manslaughter only, there was error in the manner in which the case was put to the jury. In reference tp the evidence of Harriet, if she had been the only witness, the proper charge would have been that if the prisoner had reasonable- ground, to believe that the deceased reached after the stick and turned round to strike him with it, it was manslaughter.

Such an instruction would have, been proper upon the whoje of the evidence together. That the deceased reached his hand inside of the door for his stick (admitted to be a deadly weapon) is proved by Micajah, G-eorge and Harriet. That¿t was his purpose to strike the prisoner with it, is proved -by Micajah and George, both of whom say, that he knocked him down- throe times with *the*.stick. Jack also proves that the deceased struck the prisoner with it. Micajah and George state that the stick was reached for*aftcr the wound was inflicted on the deceased, but Harriet’s evidence, if believed,.shows that it was before. Whether the reaching for the stick was before or after the wound was inflicted, was a question of fact and not a question of law ; a question for the jury, and not one for the Court. A jury may believe a witness in part, and disbelieve other parts of his testimony, as founded in mistake or perjury. They -may, and often do, *61Relieve one witness as to a part of a transaction, .ami reject bis statement, and adopt, that of another witness-astp other parts of the transaction. Suppose that they should believe Harriet as to the time when-the stick was reached after. Suppose they should then reject the improbable statement of George, as to the conversation which'preceded any acts of violence on either side, They might well do so, for he says “ he hoard prisoner say to deceased you have all laid up to whip me about that dog,” to whom the deceased.replied, ‘ • whom do ymi mean by you all?” Prisoner replied, 1 mean you, and nobody else, and I will fix you for it now.” Suppose then, that they should believe Micajah, (Norge and Jack as to the purpose for which the stick was obtained and used, we then have this case : A reaches after a. deadly weapon to give B, who is very near him, a violent blow. B anticipates him, and stabs him with a dirk in the left side, whereupon A, nut deterred .by the wouipl, knocks B down three times with a bludgeon. Here would certainly he a case in which the party slaying cannot be guilty of any thing more than manslaughter. The question is, not wheth'er an intelligent jury would come to the conclusions on the facts of the case which I have mentioned, or whether the weight, of the evidence would warrant them in so doing, hut whether they had not a right, as triers of the facts, to como to such conclusions, or whether, irt other words, there was tiny proof, however slight .'tending to establish these view's of the transaction.

I have said that Harriet’s evidence, if believed,.shows that the reaching after the stick was before the wound •was given. It is true, that she does not. in the case made eutby the Judge, say, in so many words, that it was before, but it is clear that such was her meaning. She men*62tions that fact before the other. In common-conversation* and in almost every narrative, we mention facts in the orjler in which they occurred in point of time, and if we do not do so we show in what order wé mean to state them as having occurred, 'because, without any explanation, the presumption is, that they occurred in the order in which they are stated. It would be in a case like this, either gross ignorance or palpable perjury, in a witness, not to mention facts in the order of time in which' they took place, and to make no explanation as to when they occurred, so that the real order of events may be accurately understood.

In the ease of the State us. Allen, the Chief Justice says that suppose the jury should disbelieve Magee and Hicks, and should believe Hobgood. These were the witnesses present at the killing. It does not appear from the case that either was impeached, and the probabilities-were strongly against Hobgood’s evidence containing the true view of the transaotion. Suppose that in our case the jury should'disbelieve all but Jack and Harriet. An intelligent jury, with a correct exposition of the law from the bench might, in that event, well acquit ®f murder. The prisoner has a right to have the case decided in this Court, as if the J udge had pronounced it murder, according to the evidence of each witness.

The charge .of His Honor is still more gpen to just exception in another particular of deep and vital importance. It invades (of course unintentionally) the right of the jury to determine upon the credibility of the witnesses. He says that, *“*upon the evidence of the witnesses upon the part of the State or the prisoner, it was a case of murder,” without saying whether they should believe the witnesses or not, or using any words • of equivalent im*63port. ‘The omission is a grave and serious one, and renders the instruction clearly and fatally erroneous. A jury being told by the Court that, upon the evidence on both sides, it was a case of murder, would consider their task a mere matter of form, and would think that they had nothing to do in the matter but merely to retire for a few moments, and then rotura with a verdict of guilty, in conformity with the views, of the Judge, whatever notions they might have as to the facts of the case or the credibility of the witnesses. I deny the right of a Judge in North Carolina to charge in this manner, no matter what may be the evidence in.the causo.

In my Opinion the Judge ought to have instructed the jury, in substance, as follows : If the jury shall believe,that the deceased re&ehbd alter his- stick just before the mortal wound was inflicted, and the prisoner had reasonable ground to believe that he: did so for the purpose of striking him with the stick, then it was a case of manslaughter. 'He certainly ought to have told them that it was their exclusive right to pass on the credibility of the witnesses.

1 will, with the indulgence of the Court, add a word or two on the doctrine of. reasonable' doubt, I am aware that tins Court, sustained, as I admit, by high authority, and probably.decming itself bound/ by it, has held that the doctrine applies merely to the fact of killing. If the question is not, in the view of this Court, too far settled by antV. irity, n :w lo be reviewed in 1-be light of principle, I would, with great deference, suggest that the rule, that doubt must be followed, by acquittal, results from the humane, maxim, that it is better that ten guilty persons 'shall escape than that one innocent man shall suffer, and that the principle on which the rule is grounded is as *64much applicable to tbe grade of tbe homicide as it is to the*fact of tbe homicide.

Pjsaksojí, C. J.

We-eoncur with Mr. Eaton in the position, that from the manner in which the ease was put to the'jury, the motion for a *venare de novo*is to be considered on the testimony of the witnesses for the prisoner only ; and that the testimony of his principal witness, Harriet, is to be taken in the view most favorable to him. This follows from the fact, that the Judge made a general charge, and did not “declare and explain the law arising on the evidence.” State *vs.*Summey at this term, Gaither vs. Feribee, 1 Winston, 315, State *vs.*Norton, Id., 305.

We have these facts : The prisoner and one Micajah, in a star-light night and in the shade of trees, had a fight. Micajah got the prisoner down, and then ran off. The _ prisoner rose up, and had his hand to his side,-as if he was holding something in his hand ; he then sat down on the door sill, on which the deceased was sitting. Words passed between them — the prisoner got up — tbe deceased-' then rose up and reached his ha'nd inside the door and got a stick. As he was turning round (after getting the •stick,) the prisoner stabbed him.in the leftside with-a bbwie knife, the blade of which was- nine inches long. The deceased then knocked him down with the stick ; as he rose, he knocked him down a second and a third time ; prisoner ran off, the deceased followed him a few steps, and fell, and died of the wound. The bowie knife and stick were admitted to be .deadly weapons.

The. learned counsel insisted that the offence was manslaughter, on two grounds. The aet of seizing the stick, with an intent instantly to strike, was an assault witE a deaply weapon, and amounted. to legal provocation. *652. Tbe prisoner bad reasonable ground to believe that tbe deceased was about to do bim great bodily barm, and struck to prevent it, wbicb mitigates tbe offence to- manslaughter.

Conceding these principles of law, the Court is of opinion that neither' applies .to this case, and that the offence is murder. There is some *confusion in*respect to the*ap-< plication of these principles of the law of homicide,' growing out of *obiter dicta*and certain decisions to be met with in the books. It is important that all confusion' should be cleared away, especially in times like these.; for one of the ill effects of war is to scatter deadly weapons among’. the people, familiarize the, public mind to scenes of.blood, and make a resort to such weapons a thing of frequent, occurrence, unless it is prevented by the fear of the law. On this account, without attempting to review the cases, (which would be an endless task) I will endeavor to give the reasons ' oh whioh the law is based ; whereby the proper applications, of its principles will be made, clear.

Manslaughter is of two kinds : 1st. When the killing is, the heat of blood.- 2d. When the killing is by accident, or mistake, arising from negligence, or a want of due precaution.

1. If A is about to strike. B, who is unwilling to enter into a fight, and shows it by words or actions, or otherwise, as by going back, or warns A not to strike, and *-A*presses on and strikes, or attempts to strike, and thereupon B kills with a deadly'weapon;, it is manslaughter; for there is a legal, pro vocation, and the law ascribes the killing to “heat »f blood,” and not to malice.

2. If, on a sudden quarrel, the parties begin a fight by consent, *without deadly weapons,*and; after blows pass, one uses a deadly weapan and kills, it is manslaughter; *66for, by tbe excitement of the fight, the Mood ia heated, and the killing is done, not of malice, but in the *“furor brevis,”*which the law, out of indulgence to human frailty, allows to mitigate the offence, although the party had himself committed a breach of the peace by entering .into the fight willingly.

*S.*If, on a sudden quarrel, the parties fight by consent, *at the instant, with deadly weapons,*and oneis kiLed, it is but manslaughter, *provided the parties fight on equal terms, and no undue advantage is taken;*for the *fairness*of the fight rebuts the implication of malice, and the law mitigates the offence out of indulgence to the frailty of human nature.

Which of these thr. e principles is applicable to our ease? When it is proved that one has killed intentionally, with a deadly weapon, the burthen of showing justification, excuse or mitigation, is on him. It is admitted the prisoner killed intentionally, with a deadly weapon. He does not show, by his words or actions, that he declined the fight, or gave back, or warned the deceased not to strike* So the first principle does not apply. The parties did not begin the fight *without*deadly weapons. So the second principle does not apply. The parties fought, by *consent,*with deadly weapons ; so the case falls under the third principle, and the question is narrowed to this Does the principle in regard to a fair fight apply? or does the case fall under the* exception in regard to a fight on unequal terms, and when undue advantage is taken? This is too-Main for discussion. The prisoner, having his weapon ready, took his adversary at a disacU vantage, and stabbed him in the side while he. was in the act of turning round to face him, and before he was *“*on his defence.” This dastardly act excludes the idea that *67bo entercd'into tbe figbt .in compliance with the common notions of honor, and shows that he !£ sought the blood *”*of the deceased.

The principle by which a killing in a *fair*light, with deadly weapons, is mitigated, was adopted at a time when every gentleman wore a sword ; and the custom was, oa offence given, to draw and fight, finch fights, owing to the expertness of the combatants in defence, were not often fatal. Mannershavo since changed. No one in private life now wears a- sword and how' far this may affect the principle - is a serious question ; but it is certain that a fair fight at the instant with deadly weapons, is now of rare occurrence. When one has a knife,' and the other a stick or a pistol, they-are ne^on equal terms-; and the purpose of each is to take advantage and give a mortal Wow, as soon as possible. Hu oh caseg fall under the exception ; the party killing is a murderer, and there is nothing to mitigate.

If, as contended by Mr. Eaton, in. a l! mutual combat” with deadly weapons, tbe offer to strike amounts to a legal-provocation, neither party would ever be guilty of more than manslaughter.;- for eacb could «ay, £i my ad-rsrsarj was about to strike with a deadly weapon !” go it would make no difference whether the fight was declined or entered into willingly, or was fair, or unfair— and the law would encourage a hasty resort to deadly weapons, and an unfair use of them, by -saying *<c*You* need not show that you declined the fight, and attempted to avoid it”; you need not show that you Uok no undue-advantage — use your weapon as soon as you can, and take all advantages ! for if yeur adversary is about to strike, it is a legal provocation, although you are also about to strike, and whichever kills will only be guilty of *68manslaughter." This would only "lead to bortid consequences, and completely upset and confound all the prm-ciples which have been so carefully adopted to deter men from the use of deadly weapons, and at the same time extend a reasonable indulgence to the frailty of .human nature.

The tear tied, eounsel did not insist with much earnestness, that the case could be brought under the second kind .of manslaughter. One or two instances will show that the doctrine has no application. • If one. handles a loaded gun so negligently that it goes off and kills, it will be excusable homicide or manslaughter, according to tlve degree ofnegligence. ,

2. An officer pushed abruptly and violently into a gentleman’s chamber early in the morning, to arrest him, not telling hi'r business'er using words of arrest. The gentleman, *not hnowing that he was an*officer, under the first impulse stabbed him with his sword. It was ruled manslaughter at common law, for tire prisoner, not knowing the officer's business, might, from his behavior, *reasonably conclude*that he was about t« rob or murder him! Cook’s case, Cro. Car., 538.

8. Upon an outcry of thieves, in filie night time, a person, who was concealed in a .closet, but no thief, in the hurry and surprise the family was under, was stabbed in the dark. This was holden to be an innocent mistake, and ruled chance medly. Levet’s case cited in Cook's •case *supra.*Foster, at page 291), observes ef this ease : *“*Possibly, it might have been better ruled manslaughter, due circumspection not having been used." In all cases, when the offence is mitigated because the party acted under a mistake, for which there was reasonable ground, if the danger hall been real, the act would have been justi-*69fable. In our caso the danger was real — the deceased was about to strike with a deadly weapon; and, if this doctrine applies, the killing was justifiable, and the prisoner ought to have been acquitted !. ! *Redmtio ad absur-dum.*■ -

The second objection to the charge is not tenable. From the view we have felt bound to take of the case, the Judge is considered as having, in effect, instructed the jury that, putting the testimony of the witnesses on the part of the State out, 'of the eaSe, us' an intentional killing with a deadly weapon was admitted, the testimony of the prisoner's witnesses did not mitigate the offence to manslaughter ; and the prisoner has no reason to complain* because the instruction assumes that what his. own witnesses swore to was true. •

, The third objection is not tenable, The position “that the principle on which, the doctrine of reasonable doubt is" grounded, is as much .applicable to the grade of the homicide, as it is to the fact of the homicide,” is not true. .The , error consists in not attending to the distinction that the fact of the homicide must he proved *by the State; but if*found or admitted, the onus.of showing justification, ex- . cuse or mitigation, is'upon the prisoner. At page 290 Foster says : “ whoever would shelter himsélf under the plea of provocation, must prove his case to the satisfaction of the jury;” the presumption of law.is against him, “till the presumption .is repelled by contrary evidence.” At page 255 the matter is explained at large.

The principle on which the doctrine of reasonable doubt as to the fact of the.homicide is grounded, is, that in *favor of life,*the fact which *the Stale*is required to establish, must be proved beyond a reasonable doubt. It * certainly would not be in favor of life, to apply this doc*70trine to matter of mitigation, wbicb the *prisoner*is required to establish. Hence, in regard to that, the rule is, the jury must be satisfied by the testimony that the matter offered in 'mitigation is true.

There is error. This must be certified, &c.