#### THE STATE vs. ALLEN HOWELL.

Upon a quarrel, one of the parties retreated about fifty yards, apparently with a desire of avoiding a conflict; the other party pursued with his arm uplifted, and when he reached his opponent, stabbed and killed him, the latter having stopped and first struck with his fist; *Held,*that this was a clear case of murder.

Appeal from the Superior Court of Law of Granville County, at the Spring Term 1849, his Honor Judge Dick presiding.

The prisoner is indicted for the murder of one Henderson Floyd. The casé is, the prisoner and the deceased, *486both men of color, lived with their families in the same house. A quarrel took place between them, the deceased being in the house and the prisoner in the yard. The prisoner threatened to go into the house and whip the deceased, and started off to do so, when he was stopped by the persons present. • After a short period, the deceased came out and walked off in a different direction from where the prisoner stood, and observed to him, if he wanted the house he could take it. The deceased continued to walk off and had gotten about fifty yards, when the prisoner swore he would whip him any how, and started after him. The house intervened between the witness and the parties, and when he came in sight of them, the deceased was standing still, and prisoner approaching him, with his arm raised in a striking position. As soon as he came within striking distance, the deceased struck the prisoner, who immediately returned the blow,and the deceased fell and died in a short time The witness interfered and saw a knife in the hand he struck with. The deceased had a deep wound in the breast and died in a few minutes. The knife was a double bladed one, one of the blades being small and the other large, being about three inches long, and with this blade the wound was inflicted.

His Honor instructed the jury that the knife used was a deadly weapon, and if they were satisfied from the evidence, that the prisoner opened it, when he started after the deceased, with the intention of using it on him, and did use it in the manner described by the witness, and thereby slew the deceased, he was guilty of murder.

The jury found the prisoner guilty of murder; a motion for a new trial was made, because of error in law in the charge of the presiding Judge, which being refused and judgment pronounced, he appealed to the Supreme Court,

*487
      *Attorneij General,*for the State.

No counsel in this Court for the defendant.

*Nash,*J.

This case is relieved from all doubt and uncertainty. The facts are few and simple, furnishing a full and complete instance, in themselves, of that malice, which is essential to constitute a case of murder ; of that *mala mens,*a mind regardless of the obligations of social duty and fatally bent on mischief. The parties lived in the same house. A quarrel, slight in its character, took place between them — the deceased, apparently with a wish to avoid a collison, left the house and the premises, was pursued by the prisoner, overtaken at the distance of fifty steps, and immediately stabbed. It is true that the deceased struck the first blow, but this does not mitigate the offence of the prisoner. In every stage' of the transaction he was the assailant. When he approached the deceased, his arm was raised in the attitude to strike, and with a deadly weapon. The law did not require the deceased to wait until the prisoner had executed his threat, but justified him in anticipating the premeditated assault. There can not be a doubt but that the crime of the prisoner is that of murder. We have examined the record and perceive no error in it or in the charge.

Per Curiam. Ordered to be certified accordingly.