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

Where, on the trial of an indictment for murder, the prisoner proved a sufficient legal provocation at the time to extenuate the homicide, it is not competent to prove, in order to shew that the killing was not on the immediate provocation but from previous malice, that the prisoner, a year or a month previously, had declared his intention to kill two or three men, it being admitted that the prisoner had no reference in such threats to the deceased, as one of those men.

Appeal from the Superior Court of Law of Cumberland County at the Spring Term 1847, his Honor Judge Battle, presiding.

The prisoner was indicted for the murder of Alfred Flowers. In opening the case for the State, the Solicitor stated, that he expected to prove from antecedent threats, as well as from the circumstances attendant upon the killing, that it was done with malice express, or, if' he failed in that proof, he expected to show that the homicide was committed under circumstances, from which the law would imply malice.

He then called *Samuel Flowers,*the father of the deceased, who testified that he was sent for, and went to the house of his son, about nine o’clock on the night he was killed — that when he arrived he found his son dead —that his deceased son’s wife, seemed greatly distressed, when she met him, and the prisoner mocked the cries, which she made in weeping — that he saw some person uncover the corpse of his son, when the prisoner, who was present, remarked, that he had laid him cold.

*Mrs. Flowers,*the widow of the deceased, was then introduced. She stated that the prisoner came to her husband’s house about one o’clock of the day, on which the homicide was committed, that he and her husband appeared to be friendly, and her husband invited him to drink — that shortly afterwards, a quarrel arose between them, in consequence of some offensive language used by the prisoner, and after a short time, she heard her hus*300band complain to the prisoner, that he had cut his pantaloons, and the witness said the pantaloons were cut, but she did not see by whom, or how it was done — that the parties then appeared to become friendty, and continued to drink together, until her husband became very drunk,,, and the prisoner excited by liquor, but not drunk — that the prisoner and her husband were connected by the marriage of the former with an Aunt of the latter, and that the latter frequently called him Uncle Jack — that towards night, another quarrel arose between them, and her husband went out of doors, when the prisoner shut the door upon him, and refused to let him come in —but upon her husband’s getting a pestle to beat down the door, and her interposition, the door was opened — that her husband then took a chair and sat down, and told the prisoner that he. had come there! uninvited, and he might take the road and go home —that the prisoner then commenced giving the damned He, to every thing said by her husband or herself — that her husband arose from his chair, saying, he could not stand it,, and, as he did so, the prisoner came towards him with his knife drawn, and thrusting it at him — that her husband, thereupon, raised his chair and pitched it over the prisoner’s head, without intending, as she thought, to strike him — that in the effort to throw the chair, her husband staggered and fell, upon which the prisoner instantly rushed upon him, and gave him several stabs while he was down — that she assisted him to rise and he went towards the door, where the prisoner followed, and stabbed him once or twice more on the back — that she then assisted him to the bed, upon which he laid down, and soon after died; she also testified to the fact of the prisoner's mocking her, and saying, that he had laid Alfred cold.

Dr, *Hicks*was then introduced and testified, that he was called to see the deceased about nine o’clock of the night when he was killed — that when he arrived, he *301found that he had been dead some time — that he examined the fore-part of his body, and found three wounds, one on Iris neck, another near the pit of the stomach, and a third on the breast; the two first of which were slight, and the last, deep and calculated to produce death, and that it appeared to have been inflicted with a dirk knife. This witness, testified further, that the deceased was a lowr, corpulent, strong made, athletic man, about forty years of age, and that, when he arrived at the house of the deceased, the prisoner appeared to have been drinking, but was not drunk.

The counsel for the State here announced, that they had closed their testimony, and would introduce no other witness, unless it became necessary to do so, in consequence of the testimony introduced in the defence.

The counsel for the prisoner, then called two witnesses, to prove, that Mrs. Flowers had given a different account of the transaction, when examined before the jury of inquest. One of these witnesses, who acted as coroner, testified, that on her examination before the jury of inquest, Mrs. Flowers said, that when she saw the chair raised, and the knife drawn, she became alarmed, and turned and went towards the door, and presently she heard a noise, as if something had happened, and, turning around, discovered her hushand going towards the bed, on which he fell, and soon expired. They stated, upon cross-examination, that when Mrs. Flowers was sworn to give testimony before the jury of inquest, she appeared to be greatly distressed, and very few questions were put to her. And they both testified that she had always borne a good character, and they would believe her when examined upon oath.

Another witness, *Theophilus Barfield,*a brother' of the prisoner, was then called, and testified, that Mrs. Flowers stated to him, that she did not see her husband killed,, having gone out of doors, when she saw her husband raise the chair.

*302The prisoner’s counsel then introduced as witnesses, • *John*and *Robert Flowers,*sons of the deceased, who attended the trial, as witnesses for the State. Robert Flowers, the elder of the two, a lad, sixteen or seventeen years old, testified, that he was not at home, until late in the afternoon of the day, when the prisoner came to *his*father’s house; that, when he went into the house, he saw the prisoner sitting on a table with a gun in his hand ; that he demanded the gun of the prisoner, who immediately delivered it to him; that he then went out of doors, and when he came back, he found the prisoner lying on a bed; that his father sent him to draw some liquor, and when he returned, he found his father sitting in a chair near the door ; that the prisoner came towards his father, when his father arose from his chair, took it up, and threw it towards *the*prisoner, and it passed a little above his head without touching him, (and he believed his father intended to throw it over his head without striking him,) and in doing so, he staggered and fell, when the prisoner rushed upon him, and stabbed him; that he did not see the prisoner have any knife in his hand, when he first came towards him, and he saw the prisoner draw it from his pocket at or about the time, when his father raised the chair, and the prisoner rushed upon his father instantly that the chair was thrown ; that immediately after his father was stabbed, he got up and went towards the door, and the prisoner followed and stabbed him again, and his father then went *to the bed*and laid down, and soon afterwards died ; that he did not see his mother assist his father either to get up from the floor, or to cari’y him to the bed. and thought, if she had done so, he would have seen it. He testified further, upon cross-examination, that after his father was dead, he went into the yard where the prisoner then was, and asked him why he had killed his father, to which the prisoner replied, that if he did not clear out, he should send him off with cut throat.

*303The prisoner’s counsel then called some witnesses who deposed to the good character of Theophilus Barfield for integrity and veracity, and closed their case.

The counsel for the State, then introduced James Manly, who testified, that about a year previous to this transaction, he saw the prisoner have a pocket knife ; that upon prisoner’s showing it to him, he told prisoner that he ought not to carry it into company, upon which the prisoner replied, that there were two men, whom he intended to kill, and that he would be damned if he would not do it, if he had to be hung for it the next day.

Allen Manly, another witness for the State, testified, that about the Christmas before the killing, which was on the last day of January 1846, he was at the house of the prisoner, who told him, that he had a very pretty knife, which he wished to show him, that he went into a room to get it, but soon returned, saying, that he could not find it, and he expected that his son had taken it off, and he said further, that he had gotten the knife for two or three men. Other witnesses were then called, who stated that they were at the house of the deceased after he was dead, on the night he was killed, and heard the prisoner, say repeatedly, that he had laid Alfred cold, and that he manifested indifference to his death. One of these witnesses testified, that before this transaction, the prisoner and the deceased appeared to be friendly, and that the deceased was a cowardly man, but violent when drunk.

It was proved by several witnesses, that the prisoner and the deceased lived within a short distance of one another, were upon terms of intimacy, and in the habit of exchanging frequent friendly visits, and there was no evidence of any disagreement or ill feeling between them at any time. Some other testimony was given, which it is unnecessary to State.

The prisoner’s counsel admitted, that if the testimony of Mrs. Flowers were to be taken, as true, the prisoner was guilty of murder, but they urged upon various grounds *304that she was *not to be*believed, and they insisted, that the account of the transaction given by Robert Flowers was the true one, and, if it were, then they contended that the throwing of the chair, by the deceased, at the prisoner, was legal provocation, that the homicide was prompted by the provocation-, and the prisoner’s offence was thereby mitigated to man-slaughter. They contended, further, that at the time the deceased rose up from his chair, he and the prisoner were upon friendly terms-, that there was no evidence of any previous malice on the part of the prisoner towards the deceased, and that none could' properly be inferred from his subsequent conduct, especially when it was considered that he was then highly excited by the use of ardent spirits, and that, consequently, there was nothing to show that the prisoner did not act upon the provocation, which he received.

The counsel for the State, after insisting that the- testimony of Mrs. Flowers was- true, contended that if the case stood alone upon the testimony of Robert Flowers; there was no legal provocation for- the killing, that the throwing of the chair by the deceased was-not,, under the circumstances, a legal provocation ; but if it were, the prisoner did not act under its influence, but acted from malice towards the deceased, and this was to be inferred from his language and conduct towards the deceased, after he came.to his house and up to the time of the fatal-deed, and also from his language and conduct after he had killed the deceased.

They contended further, that the testimony of the Messrs. Manly was also to be considered, not in the light of threats towards the deceased, but as showing, in connection with other circumstances, the motive by which the prisoner was actuated, when he killed the deceased.

The Court charged the jury upon the testimony of' Robert Flowers, that if the parties were upon friendly terms up to, and at the time when the deceased rose up, raised his chair, and threw it at the prisoner, the thrown *305mg of tbe chair by the deceased, was such a violent assault as made it a legal provocation, and if the prisoner, then acting under the provocation, drew his knife, rushed upon the deceased, and stabbed him, the killing was not a killing upon malice, but upon a legal provocation, and it would be the duty of the jury to acquit him of the charge of murder, and find him guilty of man-slaughter only. Rut the provocation could not avail the prisoner, if they found that he did not act upon it, but acted upon malice ; and, in ascertaining his motive, they had a right to consider his conduct towards the deceased, previous to the killing, and also his language and conduct subsequent to that event.

That the testimony of the Manlys’ did not show such malice towards the deceased in particular, as made it necessary for the prisoner to prove a reconciliation, in order to prevent the presumption of malice, continuing up to the time of the killing, according to the doctrine in *Madison Johnson’s case,*but the jury might consider it in connection with the other circumstances of the case, including the conduct and declarations of the prisoner, after the death of Flowers, to show whether the prisoner acted upon the provocation, or with malice.

The prisoner was convicted of murder. A motion for a new trial was submitted, because the Court instructed the jury, that they might consider the testimony of the Manlys’ and also the testimony in relation to the language and conduct of the prisoner on the night of the homicide and after it was committed, as ascertaining whether he acted upon legal provocation, or upon malice towards the deceased.

Motion over-ruled. Sentence of death pronounced and appeal taken.

*Attorney General,*for the State.

*Badger,*for the defendant.

*306Ruffin, C. J.

The prisoner lost no advantage by not objecting to the admissibility of the testimony of the Manlys’, as the counsel for the State, in the opening, stated an expectation to prove, that the killing was upon express malice. To that purpose, that evidence was material, if the jury, from it and other circumstances, inferred that Flowers was the person, or one of the persons, whose life the prisoner threatened; and it would be the stronger, the more frequently the thi-eat was uttered, and the greater the length of time through which it was repeated, as tending to show that the prisoner’s mind had brooded over vengeance, and that he deliberately purposed to have the other’s blood.

But, after getting in the evidence in that way, the Solicitor, in using it before the jury, distinctly admitted that the threats were not directed towards the deceaséd, and he could not well have contended otherwise, in the absence of any evidence of ill-feeling between the parties, and after full evidence of the friendly relations that had subsisted between them. He, however, urged, that though the deceased was not the object of them, those threats, (amongst other things} “ showed the motive by which 'the prisoner was actuated when he killed the deceased.” And in reference to that position, the Court, after expressing the opinion, that, according to the evidence of the lad, Robert Flowers, there was a legal provocation, directed the jury, that the testimony of the Manlys’ did not show malice towards the deceased in particular; but that,-nevertheless, “they might consider it, in connexion with the other circumstances, to show, whether the prisoner acted upon the provocation, or with malice.” The question before this Court is, whether that direction was right or not? We think it was not; because that was not such evidence as would authorise the •finding, that the killing was upon malice, and not upon the provocation, and, therefore, that it was erroneous to leave the point to the jury on it.

*307As the question comes before this Court, it is to be assumed that Mrs. Flowers was discredited, and that the case, as to the incidents of the combat, stood upon the evidence of the son. Upon that state of the case, the Court told the jury, that there was legal provocation, which palliated the killing to man-slaughter, provided, only, the prisoner acted on it. If he did not, then indeed, it followed, that the killing was, in a legal sense, on malice against the prisoner, and amounted to murder, as there was no circumstance of accident or necessity to excuse or justify it. The essential enquiry, therefore, was, whether there was any motive for the mortal assault, besides that arising out of the admitted provocation.

Upon that question, the circumstances, that the prisoner was approaching the deceased, when the latter rose from big chair, and that he did not, when he threw the chair, touch the prisoner, nor, as the witness believed, intend to do so ; and that the deceased in throwing the chair fell, and the prisoner rushed on him, and stabbed him while down; and also, that the deceased got up and retreated, and the prisoner then pursued him and continued to stab him; those circumstances, together with the prisoner’s deportment and language to the family of the deceased and respecting the homicide, were very properly submitted to the jury, as material to be weighed by them, upon the enquiry just mentioned. Upon their weight legally, or as authorising an inference of fact, as to the state of the prisoner’s heart at the time of giving those stabs, it is not our province now to give an opinion ; and we wish to be understood as carefully refraining from the intimation of one. We only mean to say, that those were proper subjects for the consideration of the jury upon the point before them. But the instruction added to those circumstances this other, as also proper for their consideration on that enquiry; namely, that a year before, and also a month before the ^homicide, the prisoner declared his intention to kill two or three men — it being *308at the same time admitted, that the prisoner had no reference to the deceased, but that he meant other men. Now, that is saying, that it may be inferred, notwithstanding a present sufficient provocation, that the prisoner killed one person on express malice — a previous design, or set purpose to do so — because, a year and a month previously, he declared that he had a mind to kill another person. The declaration of an intention to kill another, certainly cannot stand higher, as evidence of an unprovoked purpose to kill Flowers, than the actual killing of that other. If we suppose, then, that the Manlys’ had been offered to prove, that, a year, and a month before this killing, they had seen the prisoner wantonly stab a man to death, it is clear that evidence could not have been received. The one transaction would be entirely distinct from the other. It would be altogether irrelevant to the point, whether the prisoner stabbed the deceased ; and not less so to the enquiry, on what motive did he stab him. If proved, it would, of itself, be *no*evidence of this killing, or the *quo animo,*on which the Court could leave a case to the jui’y ; and it would be equally inconclusive, and therefore calculated to mislead the jury, when left to them, in aid of other evidence, on those points. It would, in effect, be giving the prisoner’s general character in evidence against him; or even worse than that, as this is particular evidence (which the prisoner would not be prepared to answer) of an evil disposition towards certain persons formerly, as the foundation of a presumption, that the prisoner afterwards killed another person *malo animo,*instead of having done so, on an immediate provocation proved.

It is true, that there are cases, in which the killing is murder, though there was no intention to kill the deceased in particular. But they all stand upon entirely different grounds from the present. The cases alluded to are those, in which a person shoots at one man upon malice towards him, and happens to miss him, and kill *309another ; or if he lay poison for one, and another ignorantly, take it, and die; or discharge a gun in a crowd, and kill some one, though not directed to any one in particular ; or, with the intent to steal it, shoot at an ox and kill a man ; such cases ai’e, all, murder. But in each of them, there is, at the instant of the act done, from which the death ensues, an intent to commit a felony, and an intent to commit it by that very act. The law, therefore, holds the perpetrator responsible for all consequences, which flowed from that act, and treats him as if he had actually intended to do, what he happened, in execution of that purpose, to do. But, this man, Flowers, was not killed in any effort of the prisoner to slay either of the other men, against whom he had been harboring malice, as declared by him to the Manlys. The enquiry, in this case was, therefore, the strictly limited one, whether the killing was upon malice to the deceased. That could not rationally be inferred from an evil disposition towards other persons, however long and firmly cherished by the prisoner ; and therefore, according to our law of evidence, and mode of trial in criminal cases, that evidence ought not to have been received; or, after it was received under the circumstances in this case, it ought not to have been given in charge to the jury as matter, which tended to repel the presumption, that the prisoner, in killing Flowers, acted on the provocation, which he then received.

Per Curiam. Ordered that this opinion be certified to the Court below that they may proceed, &c.