#### THE STATE *vs.*ROBERT HILDRETH.

In an indictment for homicide, it is the province and duty of the Court to inform the jury, upon the supposition of the truth of the facts, as being agreed on or found by the jury, what the degree of the homicide is.

Where the State, in a prosecution for a homicide, relies upon the ground of express malice, the witnesses can only prove the existence of previous malice or threats, but they cannot prove the existence of the malice up to the time of the homicide and that the prisoner acted on it in slaying. It is the province of the jury to make those inferences, or not, upon the facts proved.

When persons fight on fair terms, and, after an inteival, blows having been given, a party draws, in the heat of blood, a deadly instrument and inflicts a deadly injury, it is manslaughter only ; but, if a party enter a contest, dangerously armed, and fights under an unfair advantage, though mutual blows pass, it is not manslaughter, but murder.

It is the province of the Court, in which the trial takes place, to judge of the truth or sufficiencey of the causes assigned for a motion for a continuance or removal of a trial.

Appeal from the Superior Court of Law of Richmond County, at *the Fall Term 1S48,*his Honor Judge Caldwell presiding.

The prisoner was indicted in Anson for the murder of William Taylor ; and Havid Hildreth was charged in the same indictment, as being present, aiding and abetting. At the instance of the prisoner, his trial was removed to Richmond ; and in Richmond the prisoner prayed for a second removal of the trial, upon his affidavit, which is set out in the bill of exceptions, stating various acts of sundry persons and other circumstances, which had induced him to believe, that he could not have a fair trial in Richmond. The Court refused the motion. The prisoner then moved for a continuance, upon his affidavit, which is also set out in the bill of exceptions, stating the absence of divers witnesses, who had been summoned for *430him, by whom he expected to prove several material facts therein stated. The Court refused that motion also. It is stated in the bill of exceptions, that about 100 pel-' sons were summoned as jurors in the case, and that the prisoner challenged a large majority of them for cause, before the jury was formed; and that the prisoner examined those, thus challenged, as to their indifference, and that more than 15 of them had formed and expressed an opinion unfavorable to the prisoner.

Upon the trial, one Edmund Taylor, a son of the deceased, and of the age of2I or thereabouts, gave evidence on the part of the State: That, after sunset on the 5th of September, 1S48, he was in his father’s corn field engaged in stacking fodder with his father, a negro man, and a younger brother — who had not age and capacity to be examined as a witness : That he, Edmund, was on a stack, which they were near finishing, and his father and the negro were throwing up fodder to him ; when he saw the prisoner, riding about in the field of his uncle. John Taylor, to the north of them, and reeling as if drunk. At that time David Hildreth rode up to the fence on the South side of the field and asked, if they knew where Robert was ; and upon being told where he was, David called Robert, who answered him ; and David then rode around the field into a lane between the fields of William Taylor and John: That the prisoner soon afterwards pulled down the fence and rode up towards the stack, so as to have the deceased between him and the stack : that then David came in a different direction, and stopped on the other side of the stack, and about six or eight steps off: that the prisoner did not then appear to be drunk, and he asked,if they had not done stacking fodder: to which no reply was made, as the witness and the deceased were displeased with him on account of a State’s warrant he had taken out against them not long before: that the prisoner then used very obscene and insulting *431language to them, and turned his horse as if he were going to ride off; and the deceased then told him, he would indict him for pulling down his fence and coming into his field, and ordered him out: upon which the prisoner got off his horse and made towards the deceased, who gave back and passed the stack ; that as he passed he told the witness to him give his knife, which the witness refused ; that David then said, “ take notice, 1 do not get off my horse That the prisoner continued'to advance on the deceased and the latter to retreat, when he said to the prisoner, “ I’ll kill you, if you don’t go out of my field but that the prisoner still advanced and the witness said to his father, “ I would not let a man rush, on me in my own field in that way” — whereupon David said, “ hush, or I’ll whip both of you,” and the deceased picked up a doted chump and after giving back eight or ten steps, and while still giving back, he struck the prisoner about the head, when the witness saw the prisoner’s hand strike the deceased in the breast, and then the deceased struck the prisoner again, and immediately exclaimed, “ Bob Hildreth has killed me — he has cut my heart open” — and the deceased, bleeding very much, walked off about twenty steps and fell dead. The witness farther stated, that the fight occurred between sunset and dark, and that the moon was shining,-so that it was daylight and moon-light; that, when the prisoner got off his horse, he did not think he would hurt his father, as he noticed particularly to see, if he had a knife or stick in his hand, and that he did not discover either, though he was on the stack ; that he did not see the prisoner raise his hand, while he was advancing on the deceased,- and that he saw him strike but one blow', though there were two wounds ; and that immediately afterwards he saw a bloody knife in the hand of the prisoner, with a blade four inches long.

*432Other witnesses gave evidence for the State, that the deceased was a small and infirm man, about sixty years old; that there were two wounds on the dead bod}'— one, on the breast, about one inch deep and penetrating the breast bone, and appeared to be a stab with a knife? the other, on the left side, about three quarters of an inch wide and six inches deep, which was mortal.

Further evidence was given, that the prisoner leased a house from the deceased, situate about a quarter of a mile from that in which the deceased resided ; and that, about four or five weeks before the homicide, the prison* er told a witness, the deceased was in the habit of watching his house to catch him trading with slaves, and he asked, if he would not be justified in whipping him — to which the witness replied he had better not do so, but appeal to the law. Other witnesses gave evidence, that, on the 13th of August 1S44, the prisoner applied to a magistrate for a peace warrant against the deceased and his son Edmund, upon the ground, that they threatened to burn his house and also to do him personal injury: That the magistrate endeavored to put him off, and the prisoner said, if he did not grant him a warrant, he would take the law into his own hands: That, thereupon, the warrant was issued on the prisoner’s affidavit, and the defendants therein were arrested and on examination discharged. Another witness deposed, that, about five weeks before the homicide, the prisoner asked him several times, if the deceased had not applied to him to watch the prisoner’s house for the purpose of detecting him in trading with slaves ; to which inquiries the witness replied, that Taylor talked a great deal, and that it was not worth while to mind him — and that, during *the*conversation, the prisoner said two or three times, “I will kill the old rascaland, the last time, he said, “ I will kill him and you may see it.” Another witness gave evidence, that, in the afternoon of the 5th of September, the prisoner *433and his brother David came on horse-back to John Taylor’s and drank some cider; but .neither was drunk: That the prisoner asked the witness, if he had not heard William Taylor say, that he intended to burn down his, the prisoner’s, house, and the witness replied, that he had not; and then the prisoner said, he would have him summoned, any how : That David then asked him, if he ever heard Taylor say, that a negro saw him, David, and his father lying in the road drunk : to which the witness replied, that he had heard the deceased say something like it — upon which David said, •* I will go over and beat old Bill Taylor nearly to death That the prisoner and David then left John Taylor’s, about an hour and a half before sunset, and rode over to James Hildreth’s, which was to the North and in'sight of John Taylor’s and about a quarter of a mile ofF. Another witness gave evidence, that the two brothers got to James Hildreth’s about an hour by sun ; and that, after being there some time, the prisoner borrowed David’s knife, saying he wanted to mend his bridle : that he opened and shut the knife twice and looked at it each time, and then put it into his pocket, and without mending his bridle, rode off North, in a direction from the deceased’s house and field; but that after going some distance, he turned towards the deceased’s plantation; and that in order to get there, he would have to pull down three fences. Further evidence was given, that the prisoner was arrested on a warrant the third day after the homicide, and was found in a thicket of briers in an old field, and that he had a slight wound on the forehead, and said that the deceased struck him there..

Upon this evidence, the counsel for the prisoner moved the Court to instruct the jury, that it was a case of mutual combat, in which the offence was extenuated from murder to manslaughter. But the presiding Judge refused to give that instruction, and told the jury, that the *434rule was, that, if two persons engage in a sudden combat, and, after they become heated by the combat, one of them seizes a deadly weapon, or uses one in his hands, having no intent to use it when the combat commenced, and slay his adversary, it is but manslaughter. And after summing up the evidence, the Court instructed the jury, that, if the witnesses in this case were to be believed, the prisoner was all the time advancing on the deceased and the deceased all the while giving back; and that.the killing, according to the testimony, if true, was not manslaughter, but murder.

The jury convicted the prisoner of murder, and from the sentence he appealed.

*Attorney General,*for the State.

No counsel for the defendant.

Ruffin, C. J.

The Court finds no error in the record.It is the undoubted province and duty of the Court to inform the jury, upon the supposition of the truth of facts, as being agreed or found by the jury, what the degree of the homicide is. *Fost. Cr. L. 255. State*v. *Walker,*N. C. T. R. 231. If it were not so, there would be no rule of law, by which a killing could be determined to be murder, but the whole matter of malice or alleviation would fall to the discretion and deoision of the jurors in each particular case, and there would be no mode of reviewing it, so as to reverse the decision, though erroneous. There could be no tyranny more greivous, than that of leaving the citizen to the prejudices of jurors, or the discretion of judges, as to what ought to be deemed an of-fence, which should, or should not, deprive him of his life. The only seourity for the accused is for the law to define *a priori,*what shall constitute a crime, and, in the case of capital punishment, when it shall be inflicted. It is ope of the praises of our law, that such have always been *435its provisions. The presiding Judge, therefore, did not transcend his power, but performed simply his duty, in directing the jury upon the point, whether the killing here amounted to murder or manslaughter, taking the facts to be as deposed to by the witnesses. The truth of the evidence, as far as appears, was not indeed contested on the part of the prisoner. On the contrary, he assumed it to be true, when he prayed an instruction upon it, in general terms, that this was one of those cases of mutual combat, in which the law holds a killing to be but manslaughter. The only question, then, is, whether the Court ought to have given the instruction asked, or whether that given was wrong ; for an error, in either respect, would entitle the prisoner to a *venire de novo.*But we are of opinion, that there is no such error. For, upon the supposition that the evidence was true, the Court holds clearly, that the prisoner was guilty, not merely of manslaughter, but of murder, in point of law; and that the malice, necessary to constitute the killing murder, was implied by the law and was properly declared by the Court. It is true, there was evidence given of express malice, that is, of a previous ill-will of the prisoner towards the deceased and threats of killing him, and some evidence tending to show, that the prisoner, up to the period of the homicide, harbored such ill-will and went to the place for the purpose of killing Taylor or doing him great harm. It may be, that the evidence on that point, might have been thought by the jury to establish the inferences, to which it tended. Whether it was or not, it is purely a matter of fact, whether, after such an interval between the threats and the killing, the prisoner acted on the old grudge on this; occasion, as well as whether such previoüs malice existed, and neither the presiding Judge nor this Court has authority to form an opinion upon it. His Honor, indeed, left it to the jury, whether the evidence was true or not, and gave his instruction upon the hypothesis that the jury *436found it to be true. They have said it was; but that only goes to the facts of the previous ill-will and threats, because to those alone did the witnesses depose. They did not, and could not, testify to the continuing of the ill-wiil up to the homicide, and that the prisoner acted-on it in slaying. That is not capable of being directly proved by witnesses, but is an inference as to the actual state of the party’s mind and intention, upon which'the act of kill-i ig was done ; and it was, therefore, proper for the jury and not the Court to draw it. If the case depended on that enquiry, and the killing would not be, or, rather, was not murder, without any reference to the evidence of express malice, we should hold, it was erroneous to direct the jury, that the prisoner was guilty of murder, without submitting to the jury the enquiry-, as to the continuing existence of the express malice. But we conceive that, independent of that point, and without any regard to such parts of the evidence as are relevant to it simply, the prisoner is guilty of murder upon the facts and circumstances attending the homicide, by themselves implying malice. From the admitted fact of the homicide the law presumes malice, and the matter of extenuation must arise out of the evidence of the killing itself, or must be otherwise proved by the prisoner. Here the whole turns on the testimony of Edmund Taylor, the only witness present at the fact, and upon the number and nature of the wounds-That must be assumed to be true, because the Judge founded his instruction upon the supposition, that all the evidence was true. Taking it to be true, the prisoner cannot deduce from it any alleviation of guilt, short of murder. That, which was insisted on for him, is not tenable : namely, that it was a case of mutual combat, and therefore the offence was extenuated There is no such rule of law ; for, although in many cases of mutual combat, a killing is but manslaughter, because done upon sudden heat, yet there are many others, in which a killing in such *437a combat is murder, because the circumstances show, that the slayer was from the beginning actuated by malice, or in other words, intended to take or endanger the life of the other by an undue advantage in an unequal combat. And the rule on the point was, we think, laid down with substantial correctness in this case. Here was provoking language and behaviour on both sides ; so that it would matter not, w’hich gave the first blow, if the fight waá fair and intended by the prisoner, at the first, to be fair. But, if one, upon a sudden quarrel, draws his sword and makes, a pass at the other, whose sword is then undrawn, and then the latter draw his sword and a combat ensue in which he is killed, it is murder; for. by making his first pass, when the adversary’s sword was not drawn, the assailant shewed he sought the other’s blood, and the endeavor of the other to defend himself, which he had a right to do. will not excuse the killer. *Foster*295. Mr. East-states the rule to be, that, if on any sudden quarrel blows pass, without any intention to kill or injure materiall}', and in the course of the scuffle, after the parties are heated by the contest, one kill the other with a deadly weapon, it is but manslaughter ; but that, when an attack is made with a dangerous weapon, the party assailing, without sufficient legal provocation, must put the party assaulted upon an equal footing in point of defence, at least at the onset, 1 *East. P. C.*242,3. So, Russell says,' that, although the use of a deadly weapon after the combat began will not make the offence more than manslaughter, if the combat was equal at the onset, yet the conclusion is different, if there be any previous intention, or preparation, to use such a weapon in the course of the affray. 1 *Russ. Cr. L.*446, 497. In those positions he is supported by the cases' cited by him. In *Wliiteby’s case,*1 Lewin’s Cr. cases, 173, Mr. Justice Bayley states the law thus: when persons fight on fair terms, where life is not' likely to be at hazard, if death ensue, it *U*
      *438manslaughter: and if persons meet originally on iair terms, and, after an interval, blows having been given, a party draws in the heat of blood a deadly instrument and inflicts a deadly injury, it is manslaughter *only;*but if a party enter a contest, dangerously armed, and fights under an unfair advantage, though mutual blows pass, it is not manslaughter, but murder. In *Anderson’s*qase, the prisoner and Levy quarrelled and went out to fight, and the latter was found to be stabbed in many places and died immediately, and it appeared that the prisoner had a knife, and that no body else could have given the stabs, and the jury were told, it was murder, if the prisoner used his knife privately from the beginning, or, if, before the fight began, he placed the knife so that he might use it during the affray and used it accordingly. These principles and cases fully establish the correctness of the direction in this case. The prisoner, without exhibiting.his knife or giving any notice of it, prepared the knife before hand, or, at all events, drew it before any blow had passed, and in the dusk of the evening he pressed on the deceased, an infirm and weakly old man, who retreated eight or ten yards, and, as soon as the prisoner got near enough to strike, he gave the mortal stab. That he must have drawn the knife at the beginning, or, at least, before any blow on either side, is absolutely certain, if Edmund Taylor told the truth ; for the witness did not see the prisoner draw the knife, nor, indeed, see it at all until after the killing, and he says the stroke by the prisoner immediately followed that given by the deceased, and that the deceased then exclaimed, that he was killed. That the deceased made defence as he did, can make no difference ; for, against such an assault, as Mr. Justice Foster says, he had a right to endeavor to defend himself. It does not appear, that the weapon, with which' the deceased struck, was of a nature, that was likely to do much bodily harm, but, from the description of it and *439its effects, quite the contrary. It is the case, therefore, of an attack by an armed upon a feeble unarmed man, in which the latter endeavored throughout to avoid the conflict, and the former gave a mortal blow, with a deadly weapon, as soon as he was able to give a blow at all— the weapon not being drawn in the course of the scuffle, but being prepared before any actual scuffle, or a blow on either side. The impulse to give the mortal stroke was not excited, during and by a combat. It is clear, that the prisoner sought and took that undue advantage in the fight, which prevents the law from attributing the act of killing his fellow man to human frailty and the sudden transport of passion, excited by the provocation of a blow or during an affray, and lays it to that malignity of heart which seeks the life of another without any legal provocation. The Court, therefore, holds that in point of law there was no error in either the instruction given, or, of course, in refusing that asked.

It is the province of the Court, in which the trial takes place, to judge of the truth or sufficiency of the causes assigned for a motion for a continuance or removal of a trial. It must be so ; else it would be in the power of a prisoner to postpone a conviction indefinitely, however clear his guilt, by making affidavits with the requisite matter on the face of them. The temptation to perjury is so strong in capital cases, that it is an established practice on the circuits to distrust affidavits after one continuance or removal, and scrutinize them narrowly. The presiding Judge must dispose of such applications in his discretion; and, as in other cases of discretion, his decisions cannot be reviewed here, but are final.

Per Curiam. Ordered to be certified accordingly to the- Superior Court of Law of Richmond County.