#### THE STATE *vs.*JOHN COLLINS.

It is never the duty of a Judge to charge a jury upon a fact, purely hypothetical. If he does, it is an error, which cau and will be corrected, if it act to the injury of the accused ; and against which the Judge ought to be guard, as it is irremediable, if calculated to prejudice the prosecution.

Whether, on the tria! of an indictment for homicide, the weapon, alleged to have been used, is a deadly weapon or not, is a question for the Court, not for the jury.

Where, on the bach of a bill of a indictment, the clerk of the Court has certified, that certain witnesses were sworn and sent to the Grand Jury, that is sufficient evidence that the bill was sent to the Grand Jury.

Where the jury, on a trial for homicide, state that the *prisoner at the har*is guilty, and the clerk, in recording the verdict, calls him the *prisoner at the bar,*this is sufficient evidence from the record to show, that the prisoner was actually in Court when the verdict was rendered.

The cases of *State*v. *Benton,*2 Dev. & Bat. 196, *State*v. *Croton,*6 Ire. 185, *State*v. Swinhe, 2 Dev. & Bat. 9. *Reid*v. *Moore,*3 Ire. 310, *State*v. *Christmas,*4 Dev. 4" Bat. 413, cited and approved.

Appeal from the Superior Court of Law of McDowell County, at the Spring Term, 1848, bis Honor, Judge Battle presiding.

*408The prisoner is indicted for murder. The case states, that the prisoner and the deceased, with many other pex*-sons, were assembled>.at the house of a Mrs. Gardiner, to shuck corn — while at dinner, a quarrel arose between the prisoner and one Morrison — in which the deceased, who was present, did not interfere. The prisoner left the table and the house, with the avowed intention of going home. He was, at that time, under much excitement, and observed to the company “ boys do not follow me.” After he had gotten within about fifty yards of the corn heap where he had left his coat, the witnesses on behalf of the prosecution stated, that the deceased, with several of the company overtook him, when a conversation ensued between the prisoner and the deceased, in which, at its close, the deceased observed to the prisoner, you can get over the fence and eat some shelotts, adding some rude expression, and immediately turned off from him and advanced towards the corn heap, when the prisoner advanced several steps towards the deceased and drew his knife, and while his back was *to*him gave the deceased the fatal stab of which he died within a week. After giving the mortal wound, the prisoner wiped his knife and put it into his packet. For the defence, the prisoner’s son,. Zachariah Collins, swore, that upon the quarrel between his father and Morrison “ the prisoner went out telling the boys not to follow him,” that the deceased and others followed on behind him and the deceased came up to- him and took hold of him by the shoulders and told him, that he might get over into the little patch and eat as many shelotts as he pleased (adding the offensive expression, as stated by the witnesses for the State) that,, at the time this took placo, the prisoner and deceased were standing side by side, and that they stood so three or four minutes,, that witness went on past them and did not see the stab given, and had gone eight or ten steps, when he heard the exclamation, that the deceased was stabbed. Noah Connipe, another *409witness for the prisoner, swore *“*that he saw the prisoner as he came out of the house, that he said he was mad, very mad, that witness carried him his hat, when he said he was going home as soon as he could get his coat, which he said was near the corn pile and he started off in a sort of trot, telling the young men among whom was the deceased, not to follow him. The witness also told them not to follow him, and his wife exclaimed, for God’s sake boys dont follow him. The counsel for the prisoner con-ténded, that the testimony of Connipe and Zachariah Collins was true, and that the jury must be satisfied from it, that the deceased was engaged, with the other young men, who were at the corn shucking, in laughing at and making sport of the prisoner, that the deceased had not only caught the prisoner by the shoulder, as stated by his *sb(ti,*but had used other violence to his person, by jerking him down and that the fatal stab was given, while laboring under the excited feelings thereby occasioned, and that therefore he was not guilty of murder, but only of manslaughter; and farther that the instrument used was not a deadly weapon and that the death caused by it was accidental, and for that reason also the prisoner could only be guilty of manslaughter. The instrument used was a pocket knife with two blades, one small and the other larger, and the latter was used and the blade was two inches and a half long, and ground sharp.

The presiding judge charged the jury, that, if the statement of Zachariah Collins were rejected as untrue, the homicide was undoubtedly a case of murder, that if Collins’ testimony were believed, the mere catching the prisoner by the shoulder and using the language attributed to the deceased would not, of itself, amount to a legal provocation; they must be satisfied from the testimony of Collins, taken in connection with the other testimony in the cause, that the deceased had used more violence than that stated by the witness Collins, that the jury *410must be satisfied, that the deceased had jerked the prisoner down as contended for by the prisoner’s counsel, that that fact need not be distinctly proved, but might be distinctly and fairly inferred from other facts and circumstances proved, but it ought not to be merely guessed at or conjectured. The Judge further charged, that with regard to the knife, with which the stab was given, some weapons were deadly or otherwise, according to the persons by whom they were used ; that a knife, which in the hands of a boy, two years of age, might not be deemed a deadly or dangerous weapon, might in the hands of a strong man be so ; that if the jury believed that the knife used by the prisoner was not, in his hands, a deadly weapon, then the homicide was manslaughter, but if they thought, as used by the prisoner, it was calculated to inflict a mortal or a dangerous wound, the killing, in the absence of a legal provocation, was murder.

The prisoner was found guilty of murder and by his counsel moved for a new trial, on the ground that the court had misdirected the jury, both on the ground of the legal provocation and the nature of the weapon used. The motion was refused, and the prisoner appealed.

*Attoi'ney General,*for the State.

*Bynum,*for the defendant.

Nash, J.

The prisoner complains, that his Honor ought to have instructed the jury, that the provocation received by him was a legal one, and reduced the homicide, from murder to manslaughter. When the testimony, actually given to the jury, is separated from the suggestions of his counsel, of what might have taken place, the insufficiency of this defence is apparent. In his argument in the court below, the counsel for the prisoner insisted, that from the testimony of Connipe and Collins *' the deceased had not only caught the prisoner by the *411shoulder, as stated by his son, but had used other violence tohispei’son by jerking him down.” Of this additional violence, in jerking the prisoner down, no witness spoke. Collins himself, the son of the prisoner, saw nothing of it, nor did any other witness. It was, therefore, a mere assumption on the part of the counsel, forming no part of the evidence, and could not be taken into consideration, as, in any respect, qualifying the homicide. His Honor, in charging upon this portion of the defence, stated to the jury that they must be satisfied, from the testimony of Collins, taken in connection with other testimony in the case, that the deceased used more violence than that stated by the witness Collins, that the jury must be satisfied that the deceased had jerked the prisoner down, as-contended for by the prisoner’s counsel. In submiting to the jury an inquiry as to the existence of this alleged fact, his Honor went further, than in strictness he was bound to do, in favor of the prisoner. It is never the duty of a Judge to charge a jury upon afact, purely hypothetical; if he does, it is an error, which can and will be corrected, if it act to the injury of the accused, and against -which the Judge ought to guard, as it is irremediable if calculated to prejudice the prosecution. *Benton’s case, 2*Dev. & Bat. 169. It *toas*a mere assumption of a fact, upon the part of the defence, entirely unsupported by any ev. idence whatever.

The catching the prisoner by the shoulder by the deceased was, under the testimony in the case, no assault. It is not stated by any witness, to have been done in a rude and angry manner. The language of Collins is, that when the deceased came up to the prisoner “he *took*him by the shoulder,” not that he *caught*him. It does not appear that the witness considered it any violence, nor that the prisoner did, for according to the statement of the son, the parties “stood side by side for three or four minutes,” during which time, and during the time, it took the witness to walk eight or ten steps, he does not testify *412to hearing any angry words, or any scuffling whatever. The subsequent instruction upon this part of the case, that the fact of "jerking down” need not be distinctly proved, but might be taken “for true, from other facts and circumstances proved” was, as a general proposition, true, but had no application to the cause before the jury ; there were no such “facts and circumstances” proved, as to authorise the jury to draw any such inference, or to justify the leaving the question to them.

We think his Honor, also, from tenderness to the prisoner, erred in his charge, as to the nature of the instrument used by the prisoner. It is submitted to the jury, as a question of fact, whether a knife,.two inches and a half long, was a deadly weapon, and in describing to them what a deadly weapon is, he told them, if they thought the knife, used by the prisoner, was not, in his hands, a deadly weapon, then the homicide was manslaughter ; but if they thought, as used by the prisoner, it was calculated to inflict a mortal or a *dangerous*wound, the killing in the absence of a legal provocation, was murder. We agree with his Honor as to the nature of a deadly weapon. The latter part of the definition is not such as is usual. It is generally described by writers, as a weapon likely to produce death or great bodily harm. There are no precise terms, however, appropriated *in the*law, to the description of such an instrument; it must be shown to be one capable of producing the effects described. No one can doubt, but that a dangerous wound is a great bodily injury or harm. The description, therefore, given in the charge was correct. The error of his Honor consisted in leaving that to the jury, as a question of fact, which is strictly one of law. This is decided in *Croton’s case, 6*Ire. *185. The*Court in speaking upon the point now before us says: “If the instruction had been prayed in reference to doubt about the instrument being a deadly weapon, as we conceive, the Court ought not to have given, it to the jury.” Whether the instru-*413xnent used was such as is described by the witnesses, where it zs not produced, 01% if, produced, whether it was the one used, are questions of fact, but, these ascertained, its character is pronounced by the law; his Honor’s error consisted in leaving the latter questions to the jury. But though in the charge, upon the points we have noticed, there was'error, it was not such an one as‘"was calculated to do the prisoner any injury. On the contrary, it gave him the full benefit of a defence, which did not arise in the case, in the one instance, and left to the jury in the other, as a matter' to be found by them, a question, which the law had pronounced against; him, in the other. In neither case, then, has he a right to complain, and of course no right to a *venire de novo. State*v. *Swinke, 2*Dev. & Bat. 9. *Reid*v. *Moore,*3 Ire. 310.

The prisoner has before us further moved to arrest the judgment and assigned the following reasons: First, because it does not appear from the record, that the bill of indictment had been sent from the Court to the grand jury or how they got it into possession; Secondly, that it does not appear, that the prisoner was present in Court during the trial. As to the first objection, if it could be taken in this form, we should not think it sufficient. Upon the back of the bill of indictment is the following endorsement: “State *v.*John Collins, murderer. Calvin Gardin, James Ingles and others, witnesses, sworn, *sent*and bound. S. B. Erwin, C. S. C. L. A true bill. D. Glass, foreman.” Fi’om this endorsement it appears, that the witnesses in behalf of the State were sworn in Court and sent to the grand jury, with their names endorsed as having been so sworn upon that bill. This sufficiently shows, that the bill was sent to the grand jury by the Court. The second objection is equally unavailing to the prisoner. It is very certain, that it is essential to the legal trial of a man upon a charge of life and death, that, he should be present, to avail himself of any objection that might oc'cur *414on the trial, and to confront the prosecutor and witnesses against him. *llh sec. of the Bill of rights.*

The question here, however, is not whether the prisoner was entitled to be so present, but whether it sufficiently appears on the record that he was present. The record does not set forth, with that fullness it might have done and such as is usual, what did occur on the trial. But “it is sufficient, if it be certain, to a certain intent, in general; it is not necessary that it should be certain, to a certain intent in ever3r particular, so as absolutely to exclude every possible conclusion, all argument, presumption or inference against it.” This is the language of the Court in *Christmas's case,*4 Dev. & Bat. 413. The record in this case shows, in language sufficiently intelligible, that the prisoner was present at the conclusion of the trial. It states the names of the jurors who were sworn and charged to try the case ; it then proceeds, who find : *“John Collins, the prisoner at the bar,*guilty,” &c. It is answered on the part of the prisoner that this does not ascertain with sufficient certainty his presence during the trial.

Under the rule laid down in the case of Christmas we think it does; and that we are bound, from it, to believe that he was present during the trial. *Croton's case*is an authority on this point. The language of the Court in that case is: “But although it is the more correct that the presence of the accused should be expressly affirmed, yet we conceive, it is sufficient, if it appear by a necessary or reasonable implication, 6. *Ire.*169. In this case the accused is called by the jury, in their verdict, the prisoner at the bar, and the clerk, in recording it, calls him the prisoner at the bar. It would be too violent a supposition, that he had been brought to the bar simply to hear the verdict pronounced, when his right to be present the -whole time is secured to him by the fundamental law of the country; and when such is the uniform practice, if not a necessary, it is a reasonable implica *415iion, that such was the fact and we so understand it. It has however been argued before us that the expression, the prisoner at the bar, is satisfied, by his being in the custody of the sheriff. The prisoner, it is true, is in the custody of the sheriff after his arrest, until duly discharged, unless he escape, but the term the prisoner “ at the bar," is used to designate *where*he is in his custody, to wit, at the bar, in the presence of the court and jury.

We cannot disturb the verdict, nor arrest the judgement ; therefore this must be certified to the Superior' Court of McDowell county, that other proceedings may be had on the conviction according to due course of law.

Per Curiam. Ordered to be certified accordingly*