#### STATE *vs.*WILLIAM GENTRY.

Where killing, which would have been manslaughter by reason of having.been done on legal provocation, is nevertheless insisted to bo murder because of the *unusual manner*in which thv^ killing was done, if there bo several aspects in which this unusual manner ¡nay be viewed as qualifying the motive of the prisoner, some of them favorable and some unfavorable, it is error in the Court to present to the jury only the view unfavorable to the prisoner.

Where the *unusual*circumstance relied on as varying the case from manslaughter to murder, was that the prisoner *put Ms knife• open in his*pocket, and the Court left it'to the jury to say whether ho thus disposed of his knife to use it »@ain in the fight*¿io ought at the same time to have submitted the enquiry whether he thus put away the knife in order todraw on the fight, andafter-wards to uso it *unfairly by giving a fatal ^ffi/Fufiawarcs ;*or J'wlicther, m fact, ho had formed any definite purpose as to the use of the knife at all ?

INDICTMENT for MUEDER, tried at the Spring Term, 1855, of Buncombe Superior Court, before his Honor Judge Saundeks.

*407The prisoner was indicted for the murder of one Mastin Gosnall. The evidence was, that the prisoner, the deceased, James Gunter (the half brother of the deceased,) and others, were at the house of the father of the deceased on the day of the alleged murder, and that the prisoner and the deceased were apparently friendly, and that the deceased had mended the shoe of the prisoner; that during the day the prisoner and Gunter had a quarrel, when the former drew his knife on the latter, and the latter drew a loaded pistol on the prisoner. In the evening of the same day, the deceased and Gunter were in the house, and the prisoner and the wife of the deceased were in the yard, when insulting language passed between the two latter, which was heard by the deceased : thereupon the deceased pulled off his coat and came out of the door into the yard, in a threatening attitude, throwing down his hat, and saying to the prisoner, “ if you have any thing to say, I am your man,” and advanced towards the prisoner in a menacing manner, with his half brother close to him, with his pistol in his possession: the mother of the deceased caught hold of him, saying, that the prisoner would kill him, when one Norton, the father-in-law of the deceased, pulled her away, saying, *“*let Mastin alone.”

The prisoner, at the time the deceased came out of the house, was standing at the fence, about ten or twelve steps from the house, whittling with his knife, and as the deceased was advancing on him, turned around and advanced two or three steps towards the deceased: the father of the prisoner got between them and said, boys, there shall be no fight here then both struck: the prisoner, with his knife, giving the mortal blow; and the deceased fell and died in a few minutes. It was likewise in evidence, that immediately upon the fatal blow being struck, the sister of the deceased .hit the prisoner with a stone, the father of the deceased knocked him down twice with a board, and Gunter snapped his pistol at him. There was conflicting testimony as to who struck the first blow. The mother of the deceased swore, that when the prisoner turned *“*round from the fence, *he gut his Imife open in*
      *408
      *his pocket,*and advanced two or three steps, meeting the deceased, when his father got between them : that the deceased raised his arm, and may have struck over his father at the prisoner, but if he hit him, it was a very slight blow, and the prisoner, being a left handed man, reached round the father and stabbed the deceased, giving the mortal wound.

The Court after explaining what constituted the different grades of homicide, and reciting the testimony on both sides, charged the jury that “ if the deceased and the prisoner met each other in a threatening attitude and the deceased struck the prisoner, and he in turn struck with the knife and gave the mortal blow under a passion, it would be such a legal provocation as to reduce the case from murder to manslaughter.”

*“*But if the prisoner saw the deceased approaching him in a threatening way, put his knife open in his pocket, and advanced to meet the deceased with a view to a rencounter, and with the intent and purpose of using the knife, not in self-de-fence, but with the design of taking away the life of the deceased, and did use it at the time, and in the manner as described by the mother of the deceased, it would be a case of murder.” Eor this the prisoner’s counsel excepted.

The verdict of the jury was for murder. Judgment and appeal.

*Attorney General*and *Baxter,*for plaintiff.

*Gaither, Edney, If. W. Woodfin*and *J. W. Woodfin,*for defendant.

PeaesoN, J.

*“*If two fight upon a sudden quarrel and one 'be killed, it is but manslaughter, although the death is caused by the use of a *deadly*weapon.”

; But if in such case the killing be committed in an *unusual manner,*showing evidently, that it is the effect of deliberate wickedness — malice—not passion, it is murder; although there be a high provocation. *State*v. *Currie,*1 Jones’ Rep. 283.

In the case now under consideration, the quarrel was sudden, and the death was caused by the use of a deadly weapon : so, *409it falls within the general rule, and is but manslaughter, unless the killing was in an *unusual*manner; showing *evidently,*that it was the effect of wickedness, *i. e.*malice, not passion.

The question is, what unusual circumstance attended the killing in this case, so as to show, evidently, that it was the effect of wickedness, *i. e.,*malice, not passion ; and make it a case of murder from malice *implied?*

An assault *“*is a legal provocation; the party need not wait till he receives a blow, for the act of offering or attempting to give a blow, “ the rushing upon him for that purpose” is the beginning of the fight. *State*v. Davis, 1 Ire. 125. When he sees that a fight is inevitable or impending, when the fight is commenced by the overt act of rushing upon him with an intent to strike, his passions are aroused and the *furor breves*takes possession of him before he receives a blow.

The common law is based upon an intimate knowledge of human nature. Does not every one, who has ever observed the parties just as a fight begins, know, that at the instant the parties rush at each other, and before a blow is actually struck, the fight in fact begins, the passions are aroused, the parties are no more under the sway of reason, than after blows are actually passed ?

In the case under our consideration, when the deceased, hearing what had been said by the prisoner to his (deceased’s) wife, pulled off his coat and came into the yard in a threatening attitude, throwing down his hat, and said to the prisoner “if you have anything to say I am your man,” *and advanced towards the prisoner in a menacing*manner, *with his half brother close to him, with a pistol in his possession,*he (the dec’d.) committed an assault on the prisoner, and the killing being upon a sudden quarrel, although done with a deadly weapon, was but manslaughter, unless done in an unusual manner, showing evidently a wickedness of' heart, from which the law would imply malice, within the meaning of the terms “ malice aforethought.”

So the question is, was the killing done in an unusual manner, showing this wickedness ?

*410If, when the deceased committed the assault, by rushing towards the prisoner “in a menacing manner, with his half brother close to him, with a pistol in his possession,” the prisoner had, with a stick or a stone, or a pistol, given the deceased a mortal wound, the killing would have been manslaughter, because of the'legal provocation by reason of “ the assault.” If the prisoner had “held the knife up in his hand,” no distinction could be taken between the knife and a stick, or a stone, or a pistol, being all of them deadly weapons. So, if the killing amounted to murder, it was an exception to the general rule, by reason of the unusual manner in which the knife was used.

This makes the case turn upon the testimony of the mother of the deceased ; and such is the effect given to her testimony by the manner in which the case is put to the jury. She swore “ when the prisoner turned around from the fence he put the knife *open in Ms pocket,*and advanced two or three steps meeting the deceased.”

This, taken in connection with the Other testimony, and the doctrine of homicide distinguishing manslaughter from murder, above stated, made it the duty of the presiding Judge to charge the jury that as it was a'killing upon a sudden quarrel, and the assault made by the deceased was a legal provocation, it was a case of manslaughter, unless there "was some circumstance, showing evidently that the prisoner did the act from pre-conceived malice ; or unless the manner of killing was so unusual as clearly to show that the prisoner acted, not from the present provocation, by reason of the assault, but from wickedness of heart, which furnishes a ground from which the law implies malice.

There were three points of view in which the case ought to havo been presented to the jury, admitting' the testimony of this witness to be true :

1st. If, when the deceased came out of the house, and made the assault by *rushing towards the prisoner,*who was standing at the fence, whittling with his knife, the prisoner, in the hurry of the moment, when intent only upon meeting the ad-*411vanee of the deceased, put his knife into his pocket, opera,without then thinking of the circumstance, or of the use he would make of it in the rencontre, the killing came under the general rule and was manslaughter.

2nd. If, when the deceased came out of the house and made the assault, the prisoner *put his Tmife open in his pocket,*on purpose, with an intent to use it if what occurred afterwards should make its use necessary, or should prompt or impel him in self-defense to make use of it, still, there being a *legal provocation,*the killing was but manslaughter: because there was nothing from which the law would imply malice.

3rd. If, when the deceased came out of the house, the prisoner had put his knife in his pocket *open, with cm intent to conceal the fact of his being thus armed and thereby drawn*on the deceased as if they were to have an ordinary fight, he having the purpose of taking an *undue*advantage and giving *a fatal blow uncmares,*then, notwithstanding the apparent provocation, the law implied such a wickedness of heart, and a disposition fatally bent on mischief,” as amounted to malice aforethought, and made the killing *murder.*

In this connection, his Honor might have called the attention of the jury to the fact, that it is not usual for one to put his knife into his pocket without shutting it, (because of the danger of being cut:) but then, in all fairness, he ought to have given the prisoner the benefit of the fact, that the “ assault” was not an ordinary one “ where two, upon a sudden quarrel, agree to fight;” bnt the fight was *begun*by the deceased : “ his rushing upon the prisoner with an intent to strike him,” was an assault — a “ legal provocationand he was *bached,*(using a common but expressive word) that is, had the presence and support of his half brother with a pistol in his hand, and he had other aiders, &c., after the fact; for, upon the instant, a sister of the deceased *hit*the prisoner with a *rock:*the father of *the*deceased knocked the prisoner down twice with a board, and the half brother of the deceased, who had just before attempted to use his pistol, with an intent to kill the prisoner, snapped his pistol at him : so the prisoner *412was in the “midst of enemies.” See *State*v. Hill, 4 Dev. and Bat. 491.

Pee Cueiaw. There must be a *venire de novo.*