#### THE STATE *v.*WILLIAM SMITH.

Where one goes to the house of another in a peaceable manner without offering or threatening violence to his person or dwelling, and upon being ordered off and not going immediately, is killed by the owner of the premises, the slayer is guilty of murder, although it be ^proved that he had previously forbidden the deceased from coming on his premises.

This was an indictment for Murder, tried at Rockingham on the last circuit before his Honor, Judge Toomer.

The prisoner was charged with having killed one Samuel Callam. On the trial, a witness was introduced on the part of the State, who swore, that on the 11th day of February last, which was Sunday, he was sent by the déceased to the house of the prisoner to get a bottle of whiskey, the deceased and prisoner being neighbors. The witness was to procure' the whiskey from a son of the prisoner, but the son not being at home, the witness was detained, awaiting his return, longer than he had expected, and longer than had been foreseen by the deceased. While the witness was sitting in the house by the fire, with the prisoner and one Osborne, he saw the prisoner waive his hand, and heard him say at the same time, “ clear yourself.” The witness from his position., could not see who was in the yard to whom the prisoner spoke. The prisoner instantly rose from his seat, took a shot gun, and went into the piazza, where the witness fob *118lowed him, and saw the deceased standing in the yard with his face towards the house. The, prisoner raised the gun, presented it at the deceased, and snapped it; he then prepared the lock, raised and presented the gun again at the deceased, and snapped it a second time. The prisoner then laid the gun on a bench, went into the house, got a rifle, returned into the piazza and fired at the deceased. The ball from the rifle took effect,and the deceased instantly exclaimed, “ Lord ! uncle Billy, you have killed me,” and died in about an hour after receiving the wound. The deceased was not approaching the house when he was shot, and had not advanced a step towards it, after the witness first saw him. He had in his hand a small and very light walking stick which he held in the ordinary position with one end on the ground, and he made no attempt to raise it. He did not speak a, word to the prisoner until after he was shot, when he made the exclamation above stated. The deceased had no weapon with him except the stick above spoken of.— When the prisoner was about to shoot the deceased, the witness attempted to interfere to prevent it, but the prisoner threatened him, and he was compelled to desist. Not more than two or three minutes elapsed from the time the prisoner went into the piazza with the shot gun, before he fired the rifle.

June, 1838.

The prisoner offered to give in evidence, testimony to shew that the deceased had attempted to use a dirk in two or three different quarrels, but the evidence was objected to by the prosecuting officer, and rejected by the Court. The prisoner then offered to give in evidence, declarations of the deceased, made several months before the killing, when the Court was about to reject the testimony upon the ground that those declarations formed no part of that transaction, and that if they had, *words*were not *legal provocation,*and could not *extenuate the offence,*but being assured by the prisoner’s counsel that those declarations would not be urged as *legal provocation*in themsélves, but be submitted to the jury, as circumstances giving a character to the transaction, and from which the jury could infer the intent with which the deceased visited the prisoner’s house, and therefrom deduce inferences explaining the conduct of the deceased *119t here, and having a direct tendency to shew that he was ■ assaulting the prisonor, or attempting forcibly to dispossess him of his domicil, the evidence was admitted. Several witnesses were thereupon introduced, who stated that several months before the fatal occurrence, they heard the deceased on. public occasions, and at different places, boast that he had debauched the prisoner’s wife, and declare that he could have illicit intercourse with her whenever he pleased. The prisoner then introduced his daughter, who swore that in August last, the prisoner and her mother separated, and had not since that time lived together; that about a week after the separation, the prisoner told her to inform the deceased that he would not go in pursuit of him, but that the deceased must not come to his house ; that if the deceased came there, he would kill him; that he had parted the prisoner and his wife, and he must not come on the prisoner’s premises to “pester” him. This message was delivered to the deceased within a few days thereafter, when he replied that he was a free man, and would go where he pleased.

The testimony being closed, the prisoner’s counsel urged that the homicide was justifiable; if not justifiable that it was' excusable ; and then insisted that if the homicide was felonious, it was only manslaughter and not murder. And the Court was requested to instruct the jury : “1st That if the deceased was expressly forbidden to enter thfe yard of the prisoner, it was only manslaughter: Sndly, That if the prisoner had forbidden the deceased to come to his house, and the deceased did come, and the prisoner had a well grounded belief that the object of the deceased was unlaw-fill, then it was only manslaughter: 3dly, That if the deceased had been forbidden to come to the house of the prisoner, and he did come and menace the prisoner with violence, either by words or gestures, and refused to go away when ordered, then it was only manslaughter.”

His Honor, after stating the different kinds of homicide and explaining what was justifiable, and what excusable homicide, proceeded to instruct the jury as follows: “ Felonious homicide includes murder and manslaughter. Murder is the felonious and unlawful killing of one reasonable creature by another, with malice aforethought either express or *120implied. Malice is implied, when the circumstances attending the transaction shew, that the slayer is a man of wicked an^ depraved disposition, of violent temper, of ungovernable passions, and vindictive feelings, and has a heart regardless of social duty, and fatally bent on mischief. — If there be no *legal*provocation, and the weapon used be fitted and likely to produce death, the law infers malice. Words are not legal provocation. Was the weapon fitted and likely to produce death ? If the prisoner had taken the deceased in adultery with his wife, and killed him on the spot, or before his passions had time to cool and subside, it would be manslaughter and not murder. This the law considers the greatest provocation that can be given. But declarations by the deceaed, that such an act had been committed, are mere words, and are not legal provocation ; and especially, if the killing occurred long after the declarations had been made. The State also insists, that the law not only implies malice from the circumstances of this transaction, if they be believed by you, but that there is evidence of express malice. If you be satisfied from the evidence, that the prisoner killed the deceased with sedate and deliberate mind, and with a formed design, there is express malice. Former grudges and antecedent menaces are evidence of this formed design. Do the witnesses introduced by the prisoner satisfy you, that he entertained grudges, and uttered menaces against the deceased *1*If so, there is evidence of express malice; and you are to determine, if you be satisfied of its existence. If you believe from the evidence, that the homicide was committed under the influence, and by the promptings of former grudges, and in pursuance of antecedent menaces, and was not in consequence of the conduct of the deceased at the time of the fatal occurrence, there was malice, and the act was murder.”

“ But the prisoner insists that it is merely manslaughter. To extenuate the offence from murder to manslaughter, it must have been perpetrated in a gust of passion, and that passion must have been excited by legal provocation. Do the circumstances satisfy you, that the prisoner acted deliberately and with formed design, and not under the influence of passion ? If so it is not manslaughter. — But if the deed *121were perpetrated under the influence of passion, was there *legal*provocation. — Words are not legal provocation. If the killing be with a deadly weapon — one well fitted, and likely to produce death, and the provocation be *slight,*it will not extenuate the crime to manslaughter. The mode of resentment must bear a *reasonable*proportion to the provocation given, to reduce the offence to manslaughter. If the deceased were a mere trespasser on the land of the prisoner, by coming there against his will; and if the deceased came there after having been told not to come, aS stated by the prisoner’s daughter ; and if the deceased did not go away instantly when he was ordered, under the "circumstances ’Stated by the witness, it would *not be*such a provocation, as would reduce the killing to manslaughter, if the deed were perpetrated under all the circumstances stated by the witness.”

The prisoner was convicted of murder, and judgment of death being pronounced he appealed.

*J. T. Morehead*for the prisoner.

The *Attorney General*for the State.

Per Curiam.

The court has not perceived any thing in the instructions to the jury, taken in connexion with the evidence stated, that can authorize a reversal of the judgment.

There was no evidence from which it could be judicially or rationally inferred, that the deceased, in word or action, threatened, or even that he meditated violence to the person or dwelling of the prisoner. On the contrary, the evidence establishes a killing without provocation at the time, upon a formed design and ancient grudge, indicated by express threats, and three repeated attempts to shoot an unarmed and unresisting man. It is a cáse of express malice, proved by direct evidence.

The judgment must therefore be affirmed, and the usual certificate transmitted to the Superior Court, in order that the sentence of the law may be carried into execution.