#### THE STATE *vs.*JOHN BARFIELD.

Il fa perfectly settled that no words or gestures, nor any thing less than tho indignity to the person of a battery or an assault at least will extenuate a hilling to manslaughter. To constitute an assault there must be an attempt or offer to strike by one within striking distance.

On a trial for murder, evidence of the general character and habits of tho deceased, as to temper and violence, cannot be received. The only exception to this rule, if there be one, is where the whole evidence as to the homicide is circumstantial.

An affidavit for the removal of a cause ought no more to be inserted as a part of the record, than one for a continuance.

It is not necessary that the record should shew a venire *facias,*either original or special, to the term of the Court, at which a prisoner is tried.

Tho cases of the *State*v. *Tilley,*3 Ired. 424, *State*v. *Upton,*I Dev. 513, *Ballard*v. *Carr,*4 Dev. *575, Stale*v. *Reid, 1*Dev. & Bat. 377, *State v. Seaborn,*4 Dev. 305, and *State*v. Laman,3 Hawks 175,cited and approved.

The cases of the *State*v. *Taclcet,*1 Hawks 211, and the *State*v. *Twitty,*2 Hawks 248, cited and commented on.

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

The prisoner was indicted in Sampson County for the murder of Alfred Flowers, and, after plea, of not guilty, on his motion and affidavit, the trial was removed to Cumberland. He was there tried and convicted, but,upon an appeal to this Court, the judgment was reversed, and a *venire de novo*awarded. 7 Ired. 299. At the next term of Cumberland Court, in November 1847, the prisoner offered an affidavit on which he moved for another removal of the trial, and the Court ordered it to be removed to Johnston Superior Court.

On the trial the widow of the deceased gave evidence for the State, in substance, and almost literally, the same *345as that given by her on the former trial, as stated in the report of the case in this Court.

On the part of the prisoner, Robert Flowers was examined as a witness. He was a son of the deceased, and was 15 or 16 years old at the time of the homicide; and he stated: That he was not at home until late in the day, on which the homicide was committed ; that when he went into the house, he saw the prisoner sitting om a table with a gun in his hand, and that he requested the prisoner to give it to him, and he immediately complied: that he went out of doors and when he came back, he found the prisoner lying on the bed, and that his father sent him to draw pome liquor, and when he returned, he found his father sitting on a chair near the door : that some angry words passed between his father and the prisoner, and that the latter was standing near the middle of the room and cursed the liquor: that his father rose up and took a light chair in his hand and pitched it over the head of the prisoner without touching him and, as the witness believed, without intending to strike the prisoner: that in doing so, his father staggered and fell, when the prisoner rushed upon him instantly and stabbed him: that he did not see the prisoner have a knife in his hand, when he first came towards his father, but he saw the prisoner draw it from his pocket at or about the time his father raised the chair: that immediately after his father was stabbed, he got up and went towards the door, and the prisoner followed him,and stabbed him in the backhand his father then went to the bed, laid down, and in a few minutes died: that he did not see his mother assist his father to get up, or to get to the bed, and that he thought, if it had been so, that he would have seen it: that after his father was dead, he went out of the house and saw the- prisoner at the gate, and asked him, “ why he had killed his father *1”*to which the prisoner replied, “that if he did not clear out, he would send him off with a cut throat.”

*346The case further states, that the prisoner then examined as a witness John Flowers, another son of the deceased, a little younger than his brother Robert, and that he testified to the same facts, except that he said the prisoner was advancing on his father, when he raised the chair.

The counsel for the prisoner then offered to prove by a witness, who had formerly lived with the deceased, that his general character was that of a violent, overbearing, and quarrelsome man, and that such were his domestic habits. On objection made on the part of the State, the Court rejected the evidence.

On the part of the prisoner, a witness named Cobb was examined, and stated, that he was one of the jury at the coronor’s inquest over the body of Flowers, and that Mrs. Flowers swore on that occasion, that she was not in the house, when the fatal rencounter took place, but that she became alarmed and had left the house before it happened.

On cross-examination he was asked, whether he had not told two persons, named Hicks and Lane, that Mrs. Flowers swore before the jury of inquest that she was in the house and saw the transaction; and he denied that he ever made such a statement to them or either of them. On the part of the State Hicks and Lane were afterwards called to prove, that Cobb did state to them.that Mrs. Flowers swore before the jury, that she was in the house and witnessed the rencounter. This testimony was objected to by the prisoner’s counsel, but received by the Court.

The counsel for the prisoner insisted before the jury, that Mrs. Flowers was not entitled to credit; and that, taking the case on the testimony of the two sons, there was such a provocation, as mitigated the killing to manslaughter.

The presiding Judge charged the jury, that, if Mrs. Flowers was to be believed, the prisoner was guilty of murder. But if they did not believe her, then they would look to the testimony of Robert and John Flowers, in order to *347ascertain the degree of homicide : and in’relation to their evidence, the Court stated to the jury, that if the deceased pitched the chair over the head of the prisoner without intending to strike him, and that was manifest to the prisoner, there was no such legal provocation as would mitigate the killing to manslaughter, but the prisoner would, in that view of the case, also, be guilty of murder.

The jury convicted the prisoner of murder; and his counsel moved for a *venire de novo,*because of the rejection of the evidence offered by him, and of the admission of that of Hicks and Lane to contradict Cobb, and for misdirection. The Court refused the motion, and, after sentence of death the prisoner appealed.

*Attorney General,*for the State.

X *H. Bryan,*for the defendant.

Ruffin, C. J.

Although it was not contended on the trial, that the offence of the prisoner did not amount to murder, if the account given by the widow of the deceased was true, yet, as the case comes here, that question is one of those to be considered by this Court. Upon it, we must say, that it admits of no doubt, that it was murder, according to her account. She stated, that, after some angry words on each side, the prisoner with his knife drawn approached the deceased, thrusting at him, and that the deceased then raised the chair, and pitched it over the others head, but without striking or intending to strike him, and that, in making that effort, he staggered from drunkenness and fell, and that then the prisoner, who, though he had been drinking, was not drunk, rushed on the deceased, while down, and stabbed him several times; and, moreover, that she assisted her husband to rise, and, that, after he had done so, the prisoner pursued him, and again stabbed him in the back once or twice. This represents the prisoner, in every respect as *348the aggressor, and grossly so : intending, and in the act of making on the deceased, a deadly assault with a drawn knife, as the beginning of the affray, and executing that intention (without receiving a blow from the deceased or an attempt to give one.) by stabbing the man to death, while he was. helpless on the floor, or, after rising, while retreating. Thus represented, there is nothing in the transaction to extenuate the killing from murder of a very dark hue, perpetrated in a cruel and diabolical fury.

The character of the killing does not seem to be materially varied, in a legal sense, by the testimony of the sons. One of them said expressly, that the prisoner was advancing on the deceased when he raised the chair. The same is to be implied from the testimony of the other, “ that he did not see the prisoner have a knife in his hand, when he *first*came towards the deceased, but saw him draw it, at or about the time his father raised the chair.” Then, it must be taken, that the prisoner, upon angry words,, was advancing in a hostile manner upon the deceased, and drew his knife as he went, and that, at or about that instant, the deceased raised and pitched a light chair over the prisoner’s head, without intending to strike him, but only in order to cheek the attack, and although it was “ manifest” to the prisoner, that the deceased did not intend to strike him, and in fact he had not done so, that the prisoner continued to press on the other, who had reeled and fallen, and killed him by repeated stabs before and behind, the deceased being all the time down and unresisting, or retreating. If necessary, it might well be considered, whether a killing in this ferocious manner, a man in the condition of the deceased, would not be murder, though there had been a slight blow with a chair, given *by*him when so drunk and weak as not *to be*able *to*stand up, *to*another then advancing for the purpose of combat with a deadly weapon drawn before receiving the blow. But we do not, *349pursue that view of the subject, because, in fact no blow was given to the prisoner, nor any intended ; and therefore there could be no provocation to palliate the killing from murder, since, from a reasonable regard for the security of human life, it has been long and perfectly settled, that no words or gestures, nor any thing less than the indignity to the person of a battery, or an assault at the least, will extenuate a killing to manslaughter. To constitute an assault there must be an atttempt or offer to strike by one within striking distance. And here both the witnesses and the jury concur in saying, there was no intention to strike, and that it was clear and evident to the prisoner, that there was not. The Court is therefore, of opinion, that there was, in the instructions to the jury, no error to the prejudice of the prisoner.

It is of great importance to the due despatch of business, and the correct decision of controversies, that no evidence should be heard which is foreign to the issue; and this rule is no less applicable and useful in criminal, than in civil, cases. Upon this principle, and because, if; received, the evidence of the general character and hab-; its of the deceased, as to temper and violence, could not1 rationally and legally affect the degree of homicide in • this case, but might mislead the jury, the Court holds, j that it was properly excluded.

The law no more allows a man of bad temper, and habits of violence to be killed by another, whom he is not assaulting, than it does the most peaceable and quiet of men. But it is said, that it ought to be heard as some evidence-— to weigh with the jury — that the deceased,being habitually a brawler and breaker of the peace, was, probably, in this particular controversy, the aggressor, or, at least, that the slayer might for that reason have thought himself in danger from him, and acted on that apprehension. Now no such principle or decision is found, as that a person may kill another, because from his former course of life, as a fighter, he apprehends an assault from him, though it be, even *350a violent one. A person may, indeed, receive such sure information of the intention of another to attack his life upon sight, as to cause him fully to believe it; and, in a moral point of view, he may, in such a case, be excused for getting the advantage on a favourable opportunity and killing first, or even for seeking private means of killing the other, in order, as he thinks, to save his own ■life. The pardoning power would, doubtless, be strongly moved by those palliating considerations, to stay the punishment annexed by the law to the offence. But it it clear, that the legal guilt would be that of murder ; because there was not, at the time, a pressing necessity to kill, arising out of an assault, and immediate danger to the person killing, nor any accompaying provocation to arouse the passions, and acted on before the passions had cooling time. It would be murder, because the killing would be deliberate ; and we know of no deliberate killing that is not murder, unless it be commanded by the law, or justified by the urgent necessity of self defence, when the party is in impending peril of the loss of life or great bodily harm from an actual and unavoidable combat. It is too much to stake the life of one man upon the fears of another of danger from him, merely upon his character for turbulence, and when he is making no assault. Such would be the case, here, if the evidence had been received ; for the prisoner’s own witnesses proved that there was no assault on him. (It is the fact, and not the fear of an assault, that extenuates the killing, upon the supposition that it instantly rouses the resentment to an uncontrollable pitch. It is possible, when the case is one of circumstantial evidence, and there is no direct proof of the quarrel and combat, that evidence of the character of the deceased might be mercifully left to the jury in aid of their enquiries into the origin and progress of the conflict, in which the prisoner took the other’s life. It was allowed, and on that principle, in *Tachefs*case, 1 Hawks 211. That is the only instance, in which, even *351In a case of circumstantial evidence, such proof was held to be proper, as far our researches and those of the Bar have discovered. It is stated in the notes on the American edition of *Phillips on Evidence,*as a solitary case, and as one, in which the Court admitted, that such evidence must be confined to the killing of slaves. Cowen and Hill’s notes to *Phill. on Ev.*461, note 345. Although the case is not, we think, obnoxious to the sneer of the annotator in respect to its application to the killing of slaves alone, yet we cannot act on it as an authority in this case. It does not profess to be founded on any precedent, and the reasoning of the Court confines its application *to'the*case of presumptive evidence before it, in which there was *“*not any direct proof” of the immediate provocation or circumstances under which the homicide was committed. In such a case the Court say, if the general behaviour of the deceased was marked with turbulence and insolence, it might in connexion with the threats, quarrels, and other existing causes of resentment against the prisoner, *increase the probability,*that the latter had acted under strong and legal provocation ; while, on the contraiy, if the behaviour of the deceased was usually mild and respectful towards white persons, nothing could be added by it to the force of *the other circumstances.*It is plain therefore that the decision is put distinctly upon the ground, that the case was one of circumstantial evidence only, in which the existence or want of provocation was matter merely of presumption, to be deduced, therefore, by the jury, from every slight thing that could add a shade to the presumption favourable *to*the accused. The case has never come directly under consideration hitherto; though it was urged in *Tilley's case, 3*Ired. 424, where evidence nearly of the same kind was rejected, and in which the Judges meant to intimate their doubts of it by saying, that temper and deportment, “if they were evidence at all,” *352•were to be established as facts, and not by reputation. But whether *Tackett’s case*be law or not, it has no application here ; because this is a case of the opposite kind— one, in which three witnesses were present from beginning to end, who depose directly to the different occurrences, and even those, who were called by the prisoner, prove affirmatively, that the deceased did not make an assault, or give the prisoner any legal provocation, but that the prisoner was the aggressor. What possible legitimate end could evidence of the character and temper of the deceased answer in that state of facts? If good, and there was direct evidence that the deceased assaulted the prisoner, it would not aggravate the prisoner’s guilt, and make it murder. So, if bad, it could not mitigate it to manslaughter, where it appears directly, that notwithstanding his temper, he was for that time, at all events, not in fault, but that the prisoner was. The evidence of the deceased’s character neither disproves the facts proved by the witnesses, nor impeaches their credibility. For these reasons, and because we think, if there were any such general rule of evidence, as that urged for the prisoner, it would have been laid down in some one of the numerons treatises on, this branch of the law, the Court holds the evidence was properly rejected.

Upon the other point of evidence, the opinion of the Court has been given in the case of *Edwards*v. *Sullivan*during this term; and the reasons are there so fully stated as to leave nothing to be added.

There is therefore no ground for a *venire de novo.*But, upon the supposition that he might fail on that part of the case, the counsel for the prisoner here also moved in arrest of judgment.

The first reason assigned is, upon the authority of *Twitty’s case, 2*Hawks 248, because the affidavit of the prisoner, on which he moved and the Court ordered the removal of the trial to Johnston, is not set forth in the trail-*353script from Cumberland. If, that were material, it would be the duty of the Court to have the omission supplied and the transcript completed by the insertion of the affidavit. *State*v. *Upton, 1*Dev. 513. *Ballard*v. *Carr, 4*Dev. 575. *State*v. *Reid,*1 Dev and Bat. 377. But since *Seaborn’s case,*4 Dev. 305, it has been considered by all the Judges of this Court, and, we believe, by the profession generally, that the affidavit for removal ought no more to be a pait of the record, than one for continuance. It is evidence to the presiding Judge and his determination of the question of removal, for the causes suggested, is final, like every other decision of a matter of fact by him.

A second reason in arrest is, that the record does not show a *venirefacias,*either original or'special, to the term of Johnston Court, at which the prisoner was tried, but merely sets forth a jury of twelve freeholders, who tried and convicted the prisoner. That is sufficient. It is according to the settled course, to which no exception is remembered. It is the practice in making up the record to set forth the *venire,*at the term at which the indictment was found, in order, we suppose, to show that the grand-jury was properly constituted. That practice it is well enough to continue, though it does not seem essential, as it has been often decided, that objection can be taken to the competence of grand-jurors only before plea in chief, or, at all events, before trial. Therefore after conviction it must suffice, if the record show a grand jury of the requisite number of good and lawful men, upon whose oaths the accusation was presented, without designating the-mode of their selection. But in no instance has the ce-*nire*been set out in the record, in order to show a proper constitution of the petit jury. If it happen, that the trial is at the term at which the indictment is found, then the *venire*appears. But even then, if one or more talesmen be of the jury, it will not appear, how he or they were *354selected; and when the trial is at a subsequent term, no *venire*for that term ever appears in the record, but only that a jury composed of twelve certain good and lawful men upon their oaths found the prisoner guilty. The reason is, that in our law a *venire*is not issued for each case, either originally, or to supply a defect of jurors. The statute directs a general *venire*for not less than 30, nor more than 36, freeholders, to attend the Court during the whole term, or until discharged; and, further, in order that there may be no defect of jurors, that the sheriff shall summon, from day to day. of the by-standers, other jurors, being free-holders, to serve on the petit jury during that day, “for the trial of all cases,” and not any particular one. In respect to talesmen, then, there is no *venire,*but any free-holder in Court is competent and may be called in, *Lamon’s case,*3 Hawks 175; and as the whole jury may be constituted of talesmen, the *venire facias*for the original panel need not be set out, since, whether the jury be constituted of persons taken from it or from the by-standers, it is equally legal. It is true, both the State and the traverser have the right to a jury of the original panel, if it can be had; and it is therefore error to refuse it. But, when a question of that kind arises, it may be put on the record with a statement of the facts directly, on which the exception is founded. It is not necessary that it should in the first instance appear, that the jury was or was not composed either wholly or in part of the original panel; but it is presumed the Court proceeded rightly and regularly in forming the jury, and in the trial, unless the contrary appear.

It must therefore be certified to the -Superior Court, that there is no error in the judgment.

Per, Cubjam;. Ordered to be certified accordingly.

*355Bautle, J.,

*dissentiente.*I cannot concur with the majority of the Court, upon the question of the admissibility of the testimony offered by the prisoner, to show the character of the deceased for violenee. It is with unaffected diffidence that I place my opinion in opposition to theirs, but, in doing so, I am consoled by the reflection, so often felt and expressed by Judges placed in a similar situation, that the conclusion to which I have been led, however erroneous, will at least be harmless. A homicide committed, otherwise than by virture of a legal precept, must be either murder, manslaughter, or excusable homicide. With malice it is murder, and even in the absence of express malice, it is still murder,unless the prisoner can show from the attendant circumstances, that it was prompted by legal provocation, committed by accident, or rendered necessary in self defence. Every fact and circumstance, which surround the main fact of the homicide, become therefore matters of vital importance, and ought to be admitted in evidence, when they can throw the least light upon it. It seems to me, that the character of the deceased for violence is one of those attendant circumstances, which will always have some, and often an important, bearing upon that which must necessarily be the subject of investigation, that is, what were the motives which impelled the slayer to act ? Take first the case, where the prisoner defends, upon the ground, that he killed his assailant in his necessary self protection. To sustain his de-fence, he must show to the satisfaction of the jury he was assailed and that he had retreated, as far he could with safety to his own life, before giving the mortal stroke, or that the violence of the assault was such that retreat was impracticable. Is it not manifest, that his apparent danger would depend much upon the character of the assailant for mild and amiable temper or for violent and ungovernable passion ? With an assailant of the former character, he would have little to fear under circumstan*356ces, in which with the latter his life would be in great peril. Let it be recollected, too, that he has to judge and to act at the instant, upon the most tremendous reponsi-bility. If he strike too soon he is condemned to a fel-lon’s death upon the gallows. If he strike too late he falls by the hands of his adversary. Surely the jury, who tries him, ought not to require from him proof of the same forbearance, when attacked by a man of blood, as when attacked by a man of peace. His danger would undoubtedly be greater in the one case than in the other ; why then not allow him to prove it ? There is certainly nothing in the nature of the testimony, which ought to forbid it. Proof of the superior physical strength of the deceased is always admitted ; why then not admit proof of that, which gives to the physical strength much of its force, and all of its danger. It appears to me, too, that the privilege, which the prisoner has, of giving in evidence his own peaceable general demeanor, is of an analogous nature. Testimony of the kind is not only admissible for the prisoner, but it has been said by very high authority that it is often testimony of much 'weight. Chief Justice' Henderson says, in the case of the *State*v. *Lipsey,*3 Dev. Rep. 493, that “ the peaceable and orderly character which the prisoner had ever borne, had, I think, more “ *than but little weight”*which the Judge in the Court below had been disposed to allow, when the facts attending the homicide had been positively sworn to.” The character of the prisoner is offered only as presumptive evidence, and the character of the deceased is offered for no more, but, as presumptive evidence, it does seem to me to be as strong, and therefore ought to be as readily admitted as the other.

If I have been successful in showing that the testimony of the violent character of the deceased ought to be admitted for the prisoner, when he defends upon the ground of killing in self-protection, the same process of reasoning will lead to the conclusion, though in a less striking *357manner, that it ought to be admitted to show that the prisoner acted upon a legal provocation. That, which would be considered legal provocation, when offered by a man apt to strike and ready to shed blood, might, very properly, not .be so regarded when offered by one of a contrary disposition. But it is said, that the right to kill does not depend upon the character of the slain — that the law throws its mantle of protection equally over the violent and the gentle, as the rain falls from Heaven equally on the just and on the unjust. That is admitted, but it proves nothing. It is true that the killing of a violent and blood-thirsty man, without provocation or excuse, is as much murder, as the killing of any other person ; but in ascertaining the fact whether there was such provocation or excuse, I contend, that the character of the violent man affords important presumptive testimony in favor of the accused. It is urged again, that where the proof is positive and clear, that there was no legal provocation, the evidence of character can have no effect, and on that account ought to be rejected. To this I answer that plenary proof on one side can never justify the rejection of testimony, otherwise competent, on the other. The argument confounds the *effect*and the *competency*of testimony. Testimony, which is competent, which may be introduced at all-may be introduced, no matter how little may be its effect, —nay even, if it be perfectly manifest in the particular case that it can have no effect whatever. It is urged further in the case before us, that the jury have found that there was no legal provocation and therefore the evidence must be rejected, as being entirely immaterial and useless. The reply is that it was offered before *the jury had so found,*and if it had *been*admitted, it is possible, that their deliberations might have led them to a different conclusion. But it is urged finally, that there is no authority in favor of the admissibility of such testimony. However this may be elsewhere, I contend that it is not *358so in this State. In the case of the *State*v. *Tacket,*1 Hawks Rep. 210, the prisoner was indicted for the murder of a slave. No witness was present when the homicide was committed; and the testimony against the prisoner consisted principally of his declarations, and of circumstances connected, more or less remotely,with the transaction. In the progress of the cause, the prisoner offered to prove “ that the deceased was a turbulent man, and that he was insolent and impudent to white people ; but the Court refused to hear such testimony, unless *it*would prove that the deceased was insolent and impudent to the prisoner in particular.” The prisoner having been convicted and having appealed to this Court, it was decided that the testimony was proper and ought to have been admitted. Taylou, Chief, Justice, delivered the unanimous opinion of the Court, in which, after remarking upon the character of the testimony, and the nature of the enquiry, he said: “ It cannot be doubted, that the temper and disposition of the deceased, and his usual deportment towards white persons, might have an important bearing upon the enquiry, and, according to the aspect in which it was presented to the jury, tend to direct their judgment as to .the degree of provocation received by the prisoner. If the general behavior of the deceased was marked with turbulence and insolence, it might,in connextion with threats, quarrels and existing causes of resentment he had against the prisoner,increase the probability, that the killer had acted under a strong and legal provocation.” Here there is a case, in which it was distinctly declared, that, the character of the deceased might be offered in evidence on behalf of the prisoner. An attempt is made to destroy the effect of this decision and of its applicability to the case before us, by saying that it is an authority only in a case where the deceased was a slave, and where there was no direct testimony as to the provocation, under which the prisoner acted. To the first of these objections the reply is that the Court cer* *359tainly, did not assign the fact of the deceased being a slave, as a reason for admitting the testimony. It is true, that a slighter cause would be a legal provocation in the case of a slave, than in the case of a white man: but they did not intimate that the provocation was to be proved by a different kind or degree of testimony. The second objection is better founded; but I can see no reason for the distinction. The testimony as to character may perhaps be stronger in the case, where there is no direct and positive evidence as to the provocation, than where the evidence is only circumstantial; but its object and its office are the same in both cases ; that is, to ascertain whether the slayer acted upon, or without, a sufficient provocation. If admissible, then, in one case, it ought not to be rejected in the other.

Upon the whole, I am of opinion, that testimony of the character of the deceased for violence may be offered by the prisoner in all cases, where the enquiry is, whether he acted from malice or upon legal provocation or excuse.

Per Curtam. Ordered to be certified to the Court below that there is no error.