#### THE STATE vs. JOHN, A SLAVE.

In a easa of homicide, testimony to prove that the prisoner’s wife had been in the habit of adultery with the deceased, not that he caught them in the act of adultery at the time of the homicide, is not admissible, because, if admitted, it does not extenuate the offence from murder to manslaughter.

Nothing but finding a man in the very act can mitigate the homicide from murder to manslaughter.

Voluntary drunkenness will not excuse a crime, committed by a man, otherwise sane, while acting under its influence.

It is not error to poll the jury, and when each juror agrees to the same verdict, to enter it as the verdict of the whole jury.

Appeal from the Superior Court of Law of Craven County, at the Spring Term, 1848, his Honor Judge Dick presiding.

The prisoner was indicted for the murder of Ben Shipman, a slave, and was tried at Craven on the last circuit.

*331The Solicitor’ for the State examined first a negro woman slave, named Flora. She stated that she was the wife of the prisoner, and had been so for about six years ; that the prisoner, although a slave, was permitted to keep house, and she was permitted to live with him; that she and the prisoner had frequent quarrels, and sometimes separated and came together again; that, some three or four days before the homicide, the prisoner, complaining that his dinner was not properly prepared, got angry, and gave her a whipping, and turned her out of his house, saying that she should not live with him any longer; that she then went to live with her mother; that about 10 o’clock of the night of the homicide, and about half an hour before it was committed, the prisoner came to her mother’s house and told her, the witness, that he intended to kill Ben Shipman the first time he saw him, that at the request of her mother, she, and her sister Sophia, a little girl about ten years of age, went to the house of Ben Shipman, which was about ten steps distant from her mother’s, and which they found open with a good fire-light in it; but Ben was not at home ; that they sat down by the fire-light and commenced sewing; that shortly after Ben came in, when she told him of the prisoner’s threat against him; that Ben then shut the door* and locked it and went into an adjoining room, and lay down on a mattrass, leaving her and her sister Sophia sewing by the fire-light; that shortly afterwards the prisoner came to the door and knocked, when she asked “ who was there,” to which he replied “ a person she asked what the person wanted, to which he replied *“*open the door or I will break it down that he thereupon did break it down, and came in and walked up to the deceased and knocked him down with a piece of iron which he held in his hand; that he struck the deceased several times while on the floor; that she became much alarmed and ran to call her brother from her mother^ *332house, and that her brother came immediately and got the prisoner out of the house of the deceased.

Sophia and several other witnesses were then examined for the State, as to the circumstances attending the homicide, but the testimony did not materially vary the case made by the statement of the first witness. From their examination it appeared, that the piece of iron, with which the blows were inflicted, was about the size of a man’s thumb, and from a foot to eighteen inches long, and that Ben died that night from the effect of the blows.

The prisoner’s counsel then announced the grounds of the defence :

First — That at the time the homicide was committed, the prisoner was laboring under mental alienation, to such an extent as to render him incapable of committing a crime.

Secondly — That there had been, and was, angadulterous intercourse carried on between Flora, the wife of the prisoner, and the deceased, which would extenuate the offence to manslaughter.

Thirdly — That the prisoner was drunk when the homicide was committed, and that it was proper for the jury to take his intoxication into consideration, as a circumstance to show that the act was not premeditated.

To show the prisoner’s insanity and drunkenness, his counsel called several witnesses, among whom were slaves Hardy and Dausey. Hardy stated that he had been acquainted with the prisoner seven or eight years; that the prisoner was a house painter, and he had worked with him about two years; that during that time the prisoner was in the habit of talking to himself, and frequently swearing as if he were angry; that he had seen the prisoner throw down and spill his bucket of paint, and heard him the next day enquire what had become of it; that sometimes when he and the prisoner were at work on different parts of a house, he, the witness, would *333think from the loud talk and swearing of the prisoner, that he was quarrelling with some person present, but, on enquiring, the prisoner would tell him that he was talking to himself. This witness testified further, that he saw the prisoner at about half-past 10 o’clock of the night when the homicide was committed; and that the prisoner was then so drunk, that he had to keep himself steady by holding on to the fence ; that he seemed to be crazy and not in his right mind, and that he had no weapon, so far as the witness saw. Dausey testified, that he saw the prisoner about 9 o’clock of the night of the homicide ; that he was talking to himself and seemed angry, and at times talked foolishly ; that he seemed to be much enraged, and said he would have his wife out of Ben’s house, towards which he was then going. Several witnesses were then called on the part of the State, for the purpose of showing that the prisoner was not insane.

The prisoner’s counsel then proposed to prove that an adulterous intercourse had been carried on for some time preceding the homicide, between the deceased and Flora, the wife of the prisoner, and insisted, that a knowledge, or belief, of such adulterous intercourse by the prisoner, would mitigate his ci'ime from murder to manslaughter’. The Court rejected the evidence. The prisoner’s counsel then proposed to prove by the declarations of the prisoner, made some time before the homicide, as well as by declarations made on the night of the homicide, that the prisoner was labouring under monomania on the subject of the adultery of his wife with the deceased. The Court rejected the declarations of the prisoner made some time before the homicide, but admitted those made on the night of the homicide and before it took place, to show the state of the mind of the prisoner. The witness Dausey was then examined as to those declarations and gave the same account, as is contained in his testimony above stated.

*334The Court charged the jury, that if the facts and circumstances testified by the witnesses were believed and satisfied them beyond a reasonable doubt that the prisoner slew the deceased, then the prisoner was guilty of murder,, provided he was sane at the time, when he committed the act; and that the law presumed every man to be sane, until the contrary was proved; that, to establish a de-fence on the ground of insanity, it must be clearly proved, that, at the time of committing’the act, the party accused was labouring under such a defect of reason from disease of the mind as not to have known the nature and quality of the *aet he*was doing; ©r, if he did know it, that he did not know that he was doing wrong. The Court instructed the jury further, that voluntary drunkenness would not extenuate a crime, and that therefore the fact of the prisoner’s being drunk,a short time before the homi. eide was committed, would not lessen his guilt, if they believed that he was sane before he became drunk.

The jury having i’etired under the charge of *the*presiding Judge to consider of their verdict, returned into open Court to deliver it, whereupon, on motion of the prisoner’s counsel, the Court ordered that the jury should be polled, and that each juror of the panel should answer for himself what was his vei’dict in this prosecution, and the jurors of the jury aforesaid, having been polled and called separately and individually, did each and severally upon their oath say that the prisoner was guilty of the felony and murder in manner and form as charged upon him in the bill of indictment.

The prisoner’s counsel moved for a new trial—

1st. Because the Court rejected the evidence offered to prove the adultery of the prisoner’s wife with the deceased.

2nd. For misdirection of the Court on the subject of drunkenness.

3rd, Because the Court rejected a part of the evidence tending to show, that the prisoner was labouring *335under monomania on the subject of his wife’s adultery with the deceased.

The motion for a new trial was over-ruled by the Court, whereupon the counsel moved in arrest of the judgment for a defect on the face of the bill of indictment. This motion was also over-ruled and sentence of death pronounced, from which the prisoner appealed.

*Attorney*General, for the State.

*J. H.*Bryan. for the defendant.

Battle, J.

We have considered the questions, presented by the counsel for the prisoner in his bill of exceptions, with all that care and anxiety for a right decision, v/hich their importance both to the prisoner and to the State imperatively demanded. We have nevertheless been unable to find in the errors assigned, any thing of which the prisoner has a right to complain. The first exception is, that the Court erred in rejecting “the evidence offered to prove the adultery of the prisoner’s wife with the deceased.” This testimony was offered to prove, not that the deceased was found by the prisoner in the act of adultery with his wife, at the time when the homicide was committed, but that “ an adulterous intercourse had been, for some time preceding the homicide, carried on between themand the counsel insisted that a knowledge, or even belief, of such adulterous intercourse, by the prisoner, would mitigate the crime from murder to manslaughter. No authority has been produced in support of this position, and so far as we can learn, all the authorities are directly against it. *Hale, Foster, East*and *Russell,*all agree in stating, that, to extenuate the offence, the bus. band must find the deceased in the very act of adultery with his wife. And so it must be upon principle. The law extends its indulgence to a transport of passion justly excited, and acting before reason has time to subdue it, but not to a settled purpose of vengeance, no matter how great the injury, or gross the *336insult, which first gave it origin. A belief — nay, a knowledge, by the prisoner, that the deceased had been carrying on an adulterous intercourse with his wife, cannot change the character of the homicide. The law on this subject is laid down with much clearness and force by *Foster in Ms Crown Law, 296,*and with him all the other writers substantially agree. “ A husband finding a man in the act of adultery with his wife, and in the first transport of passion killeth him; this is no more than manslaughter. But had he killed the adulterer deliberately and upon revenge, *after the fact and sufficient cooling time,*it had been undoubtedly murder. For let it be observed, that in all possible cases deliberate homicide, upon a principle of revenge, is murder.” As then the evidence, which was offered to show the adulterous intercourse between the prisoner’s wife and the deceased, could not, if received, have changed the nature of the offence, the Court did not err in rejecting it. But it is argued here, that the prisoner had just reasons for believing that the deceased was engaged in the act of adultery with his wife, at the very time when he broke into the house of the deceased and killed him. It may well be doubted, whether the testimony given on the trial supports this view of the case, but if it were admitted that it did, it could be of no avail to the prisoner. It is the sudden fury excited by finding a man in the very act of shame with his wife, which mitigates the offence of the husband, who kills his wrongdoer at the instant; but to the offence of one, who kills upon passion, excited by a less cause — by a mere belief of the act — the law allows of no mitigation.

The second exception is “ for misdirection of the Court on the subject of drunkenness.” All the writers on the criminal law from the most ancient to the most recent, so far as we are aware, declare that voluntary drunkenness will not excuse a crime committed by a man, otherwise sane, whilst acting under its influence. Even the ca*337ses relied upon by tbe counsel for the prisoner, *Rex*v. *Meakin,*7 Car. and Payne 297, (32 Eng. C. L. Rep. 514,) *Rex*v. Thomas, Ibid, 817 and 750. 1 *Russ, on Crimes, 8,*all acknowledge the general rule, but they say, that, when a legal provocation is proved,intoxication maybe taken into consideration to ascertain whether the slayer acted from malice or from sudden passion, excited by the provocation. Whether the distinction is a proper one or not, we do not pretend to say. It has been doubted in England, *Rex*v. *Carroll,*7 Car. and Payne 145 (32 Eng. C. L. Rep. 417) and it is a dangerous one and ought to be received with great caution. But whether admitted or not, it has no bearing upon the present case. There is not a particle of testimony to show, that the prisoner was acting, or can be supposed to have been acting, under a *legal*provocation ; and there was therefore no cause for the application of the principle, for which the counsel contends.

The third exception is, “ because the Court rejected a part of the evidence, tending to show that the prisoner was labouring under monomania on the subject of his wife’s adultery with the deceased.” The testimony offered and rejected was *“*the declarátions of the prisoner made some time before the homicide.” We are not sure that we correctly understand this exception in the connection in which it was made. One of the grounds, of defence, taken by the prisoner, was, that he was insane at the time, when he committed the homicide, and, so far as we can discover, he was allowed to introduce all the testimony in his power to sustain it. Of that and of the charge of the Judge in relation to it no complaint is, or can be made, by the prisoner. Monomania is one among the various forms of insanity ; it is a partial insanity upon one' particular subject. As a species of insanity, it was competent for the prisoner to have proved it, and he was not restricted in his proof of it, so long as he insisted on it under the defence of insanity. It was not until after he had closed his testimony on that subjeot, and also on the *338subject of drunkenness, that he offered the testimony which was rejected. We do not well see how the one could be separated from the other. The declarations too, what were they *1*Were they statements-of facts by the prisoner offered as evidence of those facts *1*If so, they were clearly inadmissible. Were they wild, incoherent, and disjointed exclamations in relation to his wife’s adultery, evincing that they proceeded from an unsound mind *1*If so, the prisoner should have offered them as proof under his defence of insanity, and they would doubtless have been received. If we are *to*judge of their nature from the declarations, which were received, as having been made on the night of the homicide, and proved by the witness Dausey, then they ought to have been rejected as the mere idle ravings of a drunken man. Qur difficulty in understanding the exception is still further increased, by the apparently inconsistent grounds of defence assumed for the prisoner, One ground, which we have already considered, is that his wife was actually guilty of adultery with the deceased. Now if by mono* mania on that subject is meant, that the prisoner was labouring under mental delusion that his wife was guilty, when in truth she was innocent, then the fact of her innocence is directly opposed to what was asserted and offered to be proved by the prisoner’s counsel. But if the prisoner’s wife was guilty, and the insane delusion of his mind was, that he had the right to kill her paramour, then it would raise a most important and interesting question, whether insanity to that extent only would render him irresponsible for crime. It seems to be settled by the highest authority in England, that it would not, *Stark, on non compos.*66. Note to *Regina*v. Thigginson, 1 Car. and Kir. and 47 Eng. C. L. Rep. 130. But we do not wish to express an opinion upon it, until the question is brought directly before us. In this case we are compelled to decide against the prisoner, because he has not shown us, that he has been deprived of any benefit or ad* *339vantage, to which by law he was entitled. An except tion has been taken here to the manner in which the verdict was rendered against the prisoner. It is contended, that the verdict is a nullity, because it was rendered by each juror severally, instead of by the whole jointly. We think that exception is not sustainable. The jury retired together, consulted together, came into Court together, to render their verdict jointly. At the instance of the prisoner’s counsel, they were polled and each was called upon to say for himself,whether he found the prisoner guilty or not guilty. Each answered for himself, that he found him guilty. Surely such finding of each con« stituent member of the whole body, is in fact and inlaw the verdict of the jury, just as much as if they had returned their verdict in the . usual manner through their foreman, and had then been polled and had spoken each for himself. The cases cited by the counsel, *Blackley*v. *Sheldon,*7 John. Rep. *82,*and *Watts*v. *Brains,*Cro. Eliz. 778, only show that after the verdict is received, but before it is recorded, the jury may, if the Court please, be examined by the *poll,*and then either of the jurors may disagree to the verdict. But here neither of them did disagree, and when the verdict was received and recorded, it became the joint verdict of the whole jury. Indeed, the verdict might have been, and should have been, entered in the usual form, without stating upon the record that the jury had been polled. A motion was made in the Court below, and has been renewed here, to arrest the judgment for a defect alleged to be apparent on the face of the bill of indictment. The defect has not been pointed out to us, and the closest scrutiny has not enabled us to detect it ourselves.

We must therefore direct it to be certified to the Superior Court of Law for Craven County,, that there is no error in the record.

Per Curiam. Ordered to be certified accordingly.