#### *The State*v. *William Durgan Hammond.*

Where, on the trial of an indictment for murder, the prisoner had had the advantage of a most humane and favorable- charge from the 'Circuit Judge, and the Court of Appeals could find no error in the verdict of the jury, his *motion for a new trial was refused.*

In his father’s house, in a quarrel with him, the prisoner drew a knife, and, when pushed from his chair by the father for so doing, cut him with it; and, in the combat which ensued, stabbed him, producing death. The prisoner had repeatedly *declared*— “ I don’t expect to die a natural death — I expect to have to kill Josh (meaning his father) sometime. He won’t let me alone. We are always quarrelling and fighting whenever we meet.” After the homicide, he said — “ I picked my place and gave it him here,” pointing to his breast, *Held,*That, if the facts showed that the quarrel was of the prisoner’s seeking —that it arose out of his misconduct — the jury might well have concluded that he sought the occasion to execute a preconceived design, of which his subsequent declaration was evidence.

Where, on the trial of an indictment of a son, for the murder,of his father, there were many circumstances of brutality, indicating a recklessness of human life — “ a heart devoid of social duty, and fatally bent upon mischief”— *92it was *held*that the jury were well warranted in finding the prisoner guilty, independently of the proof of express malice, even if the parties had stood in the relation of strangers to each other.

*Before*Wardlaw, X, *at Columbia, March,*1850.

The prisoner was indicted for the murder of Joshua Hammond, by stabbing him with a knife in the right breast.

The deceased was the father of the prisoner. The deceased was about fifty years old; had a wife and several children, to wit, the prisoner, about twenty-two years old, á daughter, Ann, about sixteen, and some younger ones. The prisoner lived as a hireling at Mr. Rose’s, about 3-4 of a mile from his father’s, and was apt to get drunk when he went out to places where there was drinking. The deceased lived with his wife and children, (except the prisoner,) near the road from Columbia to Camden, in a house of one room, with a piazzi on the north side, and the chimney at the east end. He had been excessively drunken ; and, when drunk, quarrelsome and violent; but, for a few months before his death, was sober, and was so on the night he was killed.

Henry Stephenson was a companion of the prisoners, about the same age. William Dunning, smaller than either, and about a year younger, had lived in the neighborhood of the deceased, but, at the time of this homicide, was living in Columbia, and had gone on a visit to the deceased’s, whose daughter, Ann, he was courting.

The whole testimony, taken as it was given, is here copied:

*Wm. Dunning.*— I was present at the death of Joshua Hammond. Pie and his wife had invited me to go to their house that night. I went between sunset and dark. The prisoner and Henry Stephenson came there very late, after the family had gone to bed. Prisoner had been drinking— he sat down by the fire. There was only one room in the house. Joshua got up. I was sitting by the fire with Miss Hammond, the oldest daughter. Joshua stepped out for a few minutes — returned and stood before the fire; was asked to sit down, and sat between me and the prisoner. The prisoner said to me — “I understand you are going to get married.” “I, who to?” Prisoner — “ Miss Cunningham.” All broke out into a laugh. Prisoner said — “If you don’t quit laughing at me, I’ll pull out my knife and cut some of you.” Joshua said — “ Don’t pull out your *knife*here, go home and go to bed.” Prisoner — “I won’t go to bed.” Joshua — “You had better go home and go to bed, for every time you come here, you raise a fuss before you go.” Prisoner — “I have a home, and I can go to it when I damn please.” All laughed again. The prisoner drew out his knife.. Joshua said:

*93“ You had. better not draw your knife ; go home.” Prisoner —“I have a home, and can go to it when I damn please.” ( Prisoner, opened his knife and cut Joshua on the "leg, or knee —both legs, I think. I caught the prisoner, and drew him nearly to the door. I went into the piazza, and saw no more. I left prisoner sitting on the floor. In five, or ten minutes, I saw Joshua run out of the door; ,thé door was then-shut to, and, before I got to it, it was opened again. Mrs. Hammond ran out with a light, and found Joshua lying between the garden and a hickory tree, about ten yards from the house. She broke open his collar, turned him over, and cried out, “Lord of mercy, he’s dead.” I saw blood and a stab on the right breast, between the first arid second ribs. I stayed all night. Joshua never spoke after he was found-, and died in about half an hour.

After I went out, 1 heard nothing in the house, but the children hallooing, except .at the last, some voice, (I don’t know whose) say — “ Oh, Lord of mercy.” I left the prisoner on the floor, laughing, with his knife in his hand; a small knife, with slender blade, sharp pointed.

The prisoner lived with Mr. Rose, three quarters of a mile from Joshua’s. Joshua was his father. Born in this district.

- I saw on- the body a small hole in the breast, and a cut on each leg. *,*

. — My father lived 'in that neighborhood; I did not, but was on a visit. As I went to Joshua’s, I saw the prisoner and Stephenson in the road close by; I went to’the house, got water, stayed a few minutes, then hallooed to them; and went to them. They asked me to go to old Joseph Brazil’s.. I did go with them; stayed a very short time at Brazil’s, and returned to Joshua’s, leaving them' at Brazil’s. - We had;no liquor with us; I saw none'at Brazil’s, and had' seen'none that day, except that, after prisoner came' to Joshua’s, he took a dram from a bottle on the side-board, and put the bottle in his pocket. I don’t know what Stephenson’s habits are, nor whether he had been drinking. I sometimes take a drink, but am not intemperate. . '

I was examined before the Coroner’s inquest; did not hear Stephenson examined then, but his téstimony was read' to me, and I was asked if I knew any more. I said “ No, I do not know that much.” I agreed with Stephenson down to the time I left .the house ; I told very little, for I was asked little.

There was no quarrel; but, as far as I saw, all was good humor till the prisoner talked of drawing his knife. ‘ I forget ■whether there was any reply about my being married to Miss Cunningham. Joshua and the prisoner were sitting in chairs, side by side. Somehow, the prisoner got out of his chair, and, when I saw him, was sitting on his hunkers. -I *94saw nobody; strike him, nor did I hear any blow. I Was not looking; when I looked, Joshua was sitting in his chair,.and I supposed the'prisoner had slipped out of his; .while on his hunkers, the prisoner cut Joshua’s legs. I forget whether the'prisoher had a hat on or not. 1 was in the left, hand corner, next to Joshua — on the other-side of Joshua the prisoner, then Stephenson, then Miss Hammond (I don’t’know her name) in the right hand corner. Mrs. Hammond was in a bed on the floor, just before the fire, when-the prisoner cut Joshua’s legs. I wás calm. Did not think prisoner was going.to use' his knife, for he was often playing and deviling with a knife.

. When I took the prisoner to the door, he did pot resist. I had run round, and was pulling the prisoner at the time he made the first cuts — I standing behind him — but,-before I could get him away, he made two licks. I pulled him.along on his butt, his feet dragging. I left him because he was laughing, and I thought he was not. going to do any thing more.' I always leave those who are fighting — would leave my father and brother. Mrs. Hammond got üp after J.went out. Miss Hammond ran out first; soon as.i caught hold of the prisoner.' She had been sitting on the other sidé of Henry .Stephenson.

After Mrs.-Hammond had turned Joshua over, and I had seen the wound in his breast, Ann came. I stayed two or three days, till the old pian was buried. I don’t recollect whether I had asked her parents for Miss -Ann. I do not know her' given name-; théy called her Ann for short. As to courting, I went there sometimes.

J was' just stepping into the end of the shed when I saw Joshua' go out. As I got to the door, it opened, and Mrs. Hammond ran Out. with a light. When she found Joshua, she called me and Stephenson; we went, and the' prisoner too, and he helped us to take Joshua in. When I went out, I went ten or fifteen yards from the house; returned because I heard a grown person cry, Oh, Lord !” I don’t remember Stephenson’s calling me back. 1

After we took in Joshua, the prisoner did not remain over a minute. I did not hear him sáy anything, except that when he took hold to hélp us carry Joshua in, he said — “ Oh, damn you, get up, and go into the house.”

. The prisoner is peaceable when sober; I never saw him drunk over two or three times-; then he was a little quarrelsome. • ■ ■

There was lightwood in the fire — no candle. The old man did not- run, but walked fast, when he came out of the door — said nothing; there was pot light enough for me to see him plainly.

I set the prisoner down in four or five feet of the door. I had run round to keep him from hurting his father.

*95
      *Dr. A. W. Kennedy.*— Was called to see the body, after it had lain two days — before the Coroner’s inquest. Saw row wound in the breast, which was the cause of death; another wound on the calf of the left leg was superficial; both made by a cutting instrument. Can’t' remember whether there was more than one wound on the legs.

*Henry Stephenson.*— I went to Joshua Hammond’s about half an hour before sunset; it was. raining ; the prisoner came, and, together, he and I went to Joseph Brazil’s; on the way, we met Dunning about the stable; he turned back and went with us. Dunning left us at Brazil’s ; we stayed till eleven, or half-past eleven o’clock, and then prisoner and I returned to Joshua’s, went in and sat down by.the fire where Dunning and Ann Hammond were. Joshua got up, slipt on his pants, went out, came back directly, and sat down, with us. All got to' talking.- Prisoner said to Dunning — “ I understand you are going to get married.” Durming — “ Who to ?” Prisoner — “ Never mind, I heard so.” Dunning—

“You’re mistaken, I am not going to get married.” Prisoner —“Yes.” Dunning — “But who to?” Prisoner — “Abetter man told me so than you are.” • Mary Cunningham’s name was mentioned. Joshua said — “Bill Dunning shan’t have Mary Cunningham — I’ll have her myself.” That set us all to laughing. The prisoner said — “If you don’t hush laughing, I’ll pull out my knife and cut some of you.” Josh — “ Don’t pull out. your knife here ; you had better go along home and go to bed.” Prisoner — “ I have a home to go to, whenever I.get ready I’ll go to it.” The prisoner pulled ou,t his knife. Joshua said to him — “ Don’t open your knife' here, damn you. If you open it, I’ll knock you into the fire place.” The prisoner opened the knife, and Joshua shoved him off his chair into the hearth. The prisoner made at Joshua with his open knife. Joshua rose and gathered a cháir; struck the prisoner and knocked him down into the hearth. The prisoner made at him again, and I got between them. I shoved the prisoner back into the fire-place, and told him to stand there, arid I seized the chair Joshua had; Joshua got another chair from the middle of the floor, and came again at the prisoner, who was standing still in the place I left him. Josh struck over me at the prisoner. 1 fended off the lick with my arm. The prisoner said — “ I’rn. not going to stand here to be killed,” and made at Josh again; cut at him over me, and the knife came down and cut my vest. I jumped from between them; they came together and closed. About the foot of the bed,'Josh knocked the prisoner down again. I went to the door and called Dunning to come and help me part them, or they would kill each other; Dunning was in the piazza and came into the house. Just as he and. I made up to part them, I heard Josh say — “ Take care — let *96me, get out of here.” He set the chair down and walked ous , by us. I saw blood on the floor, and told Betsey (Mrs. Hammond) to get a light, perhaps Joshua is gone, and is bleeding to death.- We went out to hunt him. Betsy came with a light, and we saw him lying on his face. I turned him over, tore open his collar, and saw where he was cut'. I called for help. 1 I, Dunning, the prisoner, and Betsey, carried him into the-house. I went off after John Brazil; returned in half an hour and found Joshua dead.

Soon as we laid him on the floor, I said — “He’s a dead mam’ — the prisoner walked off. I don’t recollect when Dun-. ning went out, but looked round, and not seeing him, called him. From the commencement of the skirmish to the close was only a few moments. -In the skirmish, Betsey got-up and cried — “ Lord of mercy, they’re fighting.”

■ I never saw the, handle of the knife — the blade looked four or five inches long.- I did not see the blow with the knife. When Josh, first shoved the prisoner off his chair, I saw the prisoner cutting at josh’s legs.

Whqn Josh .was striking - over me, he said — “Go home.” I suppose the blow on the breast with the knife, when they were in the corner, south of the fire-place. I went to the door, and called Dunning before they got into that comer. Josh then knocked the prisoner down on his knees with the chair, at the foot of the 'bed — the prisoner then backed Josh into the corner. . . -

There were two doors, north and south; piazza on the north side ; fire-place in the east end..

The prisoner was very drunk. There were spirits at Brazil’s, arid the’ prisoner had left’,some in a bottle at -his father’s, all of which he drank after we came back.

¡x¡. — I had drunk some, but was no ways intoxicated.' I went to Joshua H’s.from the Traveller’s Rest, three quarters of a mile off, where I had -been an hour or so, and where there .was no liquor; went to the traveller’s rest from H. Wilson’s; to H. Wilson’s from Joseph Brazil’s; don’t recollect where I dined'; -’twas Saturday evening, and rainy. I went to Josh’s for an old- pair of shoes ; had not been there -half an hour -before the prisoner came. Took my first liquor that day from prisoner’s bottle at Josh’s. . •

Jos. Brazil’s is west from Josh’s — a mile. We met Dunning coming from toward Columbia. We took two drinks before we went to Brazil’s;-1 took several at Brazil’s — light ones. Brazil had sent for half a gallon to Columbia. We drank one bottle full, and part of another. About a good big drink was left in the bottle at old Josh’s. I did not see Josh drink any.'

Ann was in the south corner, I next, then the prisoner— *97then Josh and Dunning in the north corner. There were two bedsteads with beds, and two other beds on the floor.

Prisoner had his hat on — -it fell into the fire when Josh shoved him off the chair. He was shoved towards the fire, and came down on his knees, with his knife open.

Josh pushed him off his chair as soon as he opened the knife, before he made any attempt to use it, and prisoner then struck at Josh’s legs. Josh jirked up a chair, and struck the prisoner while he was on his knees. I don’t know whether Josh’s fist was doubled when he. shoved or struck the prisoner into the fire-place. The first chair was of split bottom, the other had a round wooden bottom. Josh struck with vengeance, whenever he could get a chance. Josh was on the south side of the fire-place when he knocked the prisoner down at the foot of the bed, after I had jumped out; the close skirmish followed ; Josh gave back about two steps to the south corner, and then it ended.

I thought,, at first, that the old man had gone out. for a stick — but I became alarmed when he stayed too long, and I saw blood. Dunning and I went out to look before the light was brought.

Dunning was sitting in the house when the prisoner was thrust out of his chair. Nobody interfered to part them before I did; Dunning did not drag prisoner to the door. Soon as the fuss began, Dunning ran out. He did not touch the prisoner or the old man; if he had done so, no killing would have been done. He was very much alarmed — is scary any how, and was then almost crazy.

Ann ran into the piazza soon after the fuss began; I don’t recollect seeing her again, till Josh was brought in, nor hearing her scream.

As we were carrying him in, the prisoner said, “ Oh! get up:here, old Josh — you’re not dead.”

Dunning lived in Columbia; I did not see him go to Josh’s at all before he went with us to Brazil’s.

When the old woman came with the light, she cried— *“*Lord, have mercy!” There was great noise and confusion immediately. The old woman was up fastening her clothes during the fight. After the prisoner was knocked down at the foot of the bed, he rose and made at Josh, who backed into the corner.

*Wm. Rose.*— I live three quarters of a mile from Josh H’s.; the prisoner lived at my house; Josh was killed Saturday night, 21st October. Between 11 and 12 o’clock, the prisoner returned to my house, after we had gone to bed. When he came into the piazza crying, my wife asked — “ What’s the matter?” He said — “Josh is dead.” My wife — -“You don’t say so?” He — “Yes.” She — “How?” He~-“I cut him. Yes — (crying—its God Almighty’s truth,I’ve killed father, *98and I Know I’ll be hung for it,” He went to his room — then out agajn. j did not see him till next morning.

Next morning I went over to Josh H’s. and saw him dead —saw the wound on his right breast. The prisoner had a keen, sharp-pointed knife, the blade about six inches long, with buck-horn handle; which I have not seen since the deed.

Next morning the prisoner returned to breakfast — was crying ; said his father was sober, and, in telling it over, said— “I picked my place, and gave it *to him*here,” motioning with his hand at his breast.

He several times before said — “ I don’t expect to die a natural death.” I asked him why ? He answered — “ I expect *to*have *to*kill Josh some time — we are always quar-relling and fighting whenever we meet.”

After breakfast he went off, and I have not seen him since till this day.

jxj. I did not state before the coroner about *picking the place.*

I have been in the neighborhood eight or nine years, and known the prisoner all the time. He is industrious ; nothing contrary to a peaceful habit ever was observed in him about me. I often had liquor; he would take a dram, but not tod much.

Josh H. was quiet when sober; but, when drunk, was quarrelsome; would, I suppose, fight when sober, if made mad. Sometimes he would be steady for several months, and then would take a frolick. He had joined the church, and been sober for several months before his death.

I was not, before the Coroner, asked about what passed in the morning.

*Mrs. Ann Rose.*— Confirmed her husband’s statement as to what prisoner said Saturday night; did not hear what passed next morning.

DEFENCE.

*Miss Ann Hammond.*— [Stammers so much that it is painful to listen to her, and it seems impossible for her to give any connected narration.]

Prisoner and pa were sitting by the fire talking; pa ordered him to hush — took a chair and struck him on the head. I went out and saw no more of it.

That was the commencement; I went into the piazza; was scared. There was no quarrel before the blow. It was a wooden bottomed chair. The prisoner’s hat fell into the fire when he was knocked. There was a good light. There was no previous attempt by the prisoner to strike.

¡x¡ • Henry Stephenson came with prisoner. Dunning was *99there — had not been there long, before they came. Pa and ma went to bed. There was no liquor there — father had drunk none. The prisoner was pretty drunk. Prisoner told1" Dunning he heard he was going to be married. There was a laugh on the prisoner, but he did not say he would cut them, nor did he pull his knife. I saw no knife. ■ Pa got up, did’nt tell prisoner to go home, nor tell him to put up his knife, as I heard. I was sitting next to Dunning — did not pass over to the other side ; sat by Dunning till 1 went out.. I went into the piazza ; did’nt look in afterwards. Dunning came out, and went out of the piazza ; I was then standing on the side next the chimney. I was scared, but did not expect any murder. I saw no cutting on the leg, nor any pushing; saw pa strike him with a chair, knock him into the hearth, and then I went- out. Ma was in bed when I went out. I did not see pa pass out. When I went.in, they had brought him in. I left the piazza and went round the end of the house; stayed close to the back side. I heard ho noise in house. I saw ma take out a light. I heard nobody call, was near enough to hear anything that was said. Heart! nothing said about knife by prisoner.

I am 16 years old. Saw prisoner helping to carry him in.

¡H |x¡. Pa told him the day before to come; he wished to buy some corn from him. Prisoner was there afternoon of the same day. They were oh good terms. Nothing was said about corn in the afternoon, as I heard.

*Harrison Wilson, James Gill, John Brazil, Ben Brazil, Thom,as Parker,*were examined as to character, and in general, testified that the prisoner was quiet when sober, and not violent when drunk ; sometimes would drink too much, but not very often; that Josh was more powerful; very violent sometimes when drunk; often drunkbut peaceable when sober, if not excited; that they lived near the Camden Toad; that the prisoner was next day on the public road; and that Josh was a little over '50, the prisoner about.22.

The Circuit Judge says: I took as favorable a view of the case as I could for the prisoner, who was evidently in a destitute condition, and seemed to be of dull feelings and feeble intellect.

1 thought that the relation of father and son, said to subsist between the deceased and the prisoner, much as it was calculated to shock the apprehensions of the community, ought not to have much weight in determining the legal character of the offence, when the age of the prisoner and the rude intercourse of the parties were considered. .

I left it to the jury to decide what the true circumstances and incidents of the transaction were. I explained the distinctions between murder and manslaughter, and the difference which, the-right of habitation on the father’s side might *100make between the case occurring in the father’s house, and a case of similar incidents elsewhere; but I thought that the right of habitation would no longer be influential, if it appeared that the father had used unnecessary violence before any assault was committed by the prisoner, or after the prisoner had really desisted from fight, and shown his willingness to go out, if permitted; or if it appeared that the combat arose from the father’s effort to punish the prisoner, and not to eject him from the house. I left it to the jury to decide whether it could be a case of mutual combat on sudden occasion, in the course qf which death had ensued, after a struggle in which the parties were on equal terms in the beginning, and no unfair advantage had been taken by the prisoner.

I thought very litfle attention should be paid to the declarations of the prisoner, proved by Mr. Pose: “That he would be hung,” was no acknowledgment of the guilt of murder, but a natural expression of remorse for a dreadful deed done by an ignorant man. • “ That he had picked his place,” proceeded, I thought, from the self-deception of the prisoner’s imagination, or from his exaggeration to his own disadvantage in his effort to detail every particular of the affair; and even if a true statement of the quick working of his mind, in a moment of danger, did not, I thought, necessarily imply that malicious deliberation which the expression at first suggests.

The.brutal conduct of the prisoner, in drawing and opening his knife, cutting his father’s legs, and afterwards pressing upon him, were brought to view; and the jury left to decide whether the indications of “a heart devoid of social duty,” were to be seen.

The jury returned a verdict of guilty, with.a recommendation of the prisoner to mercy, on account of his youth.

The prisoner moved the Court of Appeals for a new trial,

Because the verdict of the jury, finding him guilty of murder, was contrary to the evidence, the law, and the charge of the presiding Judge.

*Tradewell, Arthur*and *Moore,*for the motion.

*Fair, Solicitor,*contra.

*Curia, per*Evans, J.

The jury'have found the prisoner guilty. There is no complaint of any error in law in the charge of the Circuit Court; which, on the facts, was as favorable to the prisoner as he could have desired. The only question submitted to this Court is, whether the facts proved make the case one of murder or manslaughter. In questions affecting human life, even the life of the most depraved, this Court is not governed by the same cold and inflexible rules by which it proceeds in questions of property. The humane maxim of the criminal law is, that all doubts are to be solved in, favor of the prisoner; Nay, it is even said, it is better that *101ninety and nine guilty should escape rather than one innocent man should suffer death. If the jury have withheld from the( prisoner the benefit of these merciful maxims, it is the duty of the Court to give him the benefit of them, by granting him a new trial. This Court is not unmindful of its duty in this respect, arid we have approached the prisoner’s case with- a due sense of our responsibility to him and to. the country. The question is — is the prisoner guilty of murder?

The main ingredient of murder is malice; which may be proved by previous threats, former grudges, hatred and ill-will, or it may be inferred from the facts attending the homicide, shewing a cruel and vindictive temper, a wantonness in the destruction of human life, and a heart regardless of social duiy and fatally bent upon mischief. The former is denominated express, and the latter implied malice; and these I propose to consider separately in reference to the evidence of the case. 1. Is there evidence of express malice? In looking through the evidence as reported, one cannot fail to be struck with horror at the prisoner’s repeated declarations to Rose, “I don’t expect to die a natural death; *I expect to have to kill Josh*(meaning his father) some time. He won’t let me alone. We are always quarrelling and fighting whenever we meet.” It is argued that this does not import malice'; that he may have meant no more than, from the way in which he was treated by his father, he apprehended that, in some rencontre between them, the necessity of killing his father might be forced on him in self defence. ’This may possibly be so; but there is no evidence, from their preceding intercourse, that there was any likelihood of any such event. If we are to judge of the past by what occurred on the night^of the homicide, we should be more apt to conclude that the quarrelling and fighting on previous occasions was the result of the misconduct of the prisoner. It is very-certain he had meditated on such an event, and that it was not a casual thought, but one over which his mind had brooded; a settled purpose; for Rose says he heard him repeat it several times. But it is said the previous quarrels had been reconciled, and that the subsequent killing on sudden quarrel should be referred to that and not to the previous malice. The rule of law is, that where there has been a reconciliation, the homicide is not necessarily to be referred to the ancient grudge, if from the circumstances of the case it appears to have grown out of the recent provocation. This is a question of fact. If the facts show that the quarrel was of the prisoner’s seeking, that it arose out of his misconduct, the jury might well conclude that he sought the occasion to execute a preconceived design, of which his subsequent declaration to Rose, that *“*I picked my place, and gave it him here,” (motioning with his hand to his breast,) was evidence.

*1022. Was there evidence of implied malice? On this subject it is not possible to lay down any precise rules to govern all cases. The conclusion must be drawn from all the facts which occurred at the time. Was the homicide committed in sudden heat and passion, excited by reasonable provocation ? If so, it is only manslaughter. But what is reasonable provocation must depend on circumstances. If one man strike another, and the other, having a weapon in his hand, kill him, this is, in general, manslaughter; but. I do not suppose any such conclusion would follow if the blow was given by a feeble woman or a child. If the provocation be slight, as mere words, or there be evidence of deliberation, the case will be murder, although the quarrel was sudden and the parties had been, up to that time, friendly. Even in cases of mutual combat, if one begin the fight with a mortal weapon, it is murder; for in all such cases the combat must have been begun on equal terms to reduce the offence to manslaughter.

The facts of this case, immediately connected with the homicide, are these, as proved by both the witnesses. The company laughed at something that was said. The prisoner said, “If you don’t quit laughing at me, I’ll pull out my knife and cut some of you.” The deceased said, “ Don’t pull out your knife here; you’d better go along home and go to bed.” The prisoner: “I won’t go to bed.” Deceased said, “You had better go home or go to bed.” Prisoner: “I have a home, and I’ll go when I please.” The prisoner pulled his knife out of his pocket. The deceased said, “Dou’t open 51011 r knife here, or I’ll knock you in the fire.” The prisoner opened his knife. Soon after, the prisoner was on the floor, probably pushed out of his chair by the deceased. The prisoner cut the deceased on the- legs. The deceased struck him with a chair; a combat ensued, in which the deceased was stabbed in the breast with the knife and died in a short time.

In reviewing the facts of this case we cannot avoid the conclusion that the prisoner’s conduct throughout was most unjustifiable. His threat to pull out his knife and cut some one, was without excuse. His refusal to go home and go to bed, and opening his knife, in defiance of his father’s orders to the contrary; his cutting his father’s legs for no higher provocation than pushing him out of his chair on to the floor, was not merely disobedient, but it was barbarous and bloodthirsty. It does not appear that the deceased in the first instance did more than to push him out of the chair m which the prisoner was sitting, next to the deceased; and this I think he 'might well have done, consistently with law, when the prisoner had an open knife in his hand, which he had drawn with the avowed purpose of cutting some one. Another fact worthy of notice is, that the occurrence took place in the house of the deceased, and that he had requested the prisoner to go *103
      *home*or to go to bed, both of which he had refused, declaring his purpose not to go until he pleased.

The law is clear that under the circumstances the deceased had a right to put him out,-and to use any force necessary to accomplish that object. The degree of force always must depend on the circumstances of the case. The law does not require so great an absurdity as that a man should lay his hands gently on an intruder into his house who has refused to depart, and is armed with a drawn knife in his hand. There is nothing then in the case which would have authorized the prisoner to use his knife, by the infliction of wounds on the legs of the deceased : it is even doubtful if he did not use the knife simultaneously, or before he was pushed from the chair. Up to this time the deceased had used no unlawful violence, and the bloody combat which followed was but the natural result of the prisoner’s unlawful act in cutting the deceased with his knife — and, but that he was on the floor and could not reach higher, it is not unlikely that the blow which was aimed at his legs would have been directed at his heart. In short, there are so many circumstances of brutality indicating a *recklessness*of human life, of “a heart devoid of social duty, and fatally bent upon mischief,” that I think the jury were well warranted in finding the prisoner guilty of murder, independently of the proof of express malice, even if the parties had stood in the relation of strangers to each other.

By the laws of most nations, as well barbarous as civilized, the relation of parent and'child is regarded as one of peculiar-sanctity. One great nation of antiquity looked upon the crime of parricide as impossible, and therefore provided no punishment for it. The prisoner is only 22 years old — an age at which, by the laws of most of the civilized nations of Europe, he was still under parental control, and bound *to*obedience. By our law he was emancipated from the,dominion of his father, but he was not thereby freed from the moral obligation to honor and reverence the author of his being. I can hardly conceive of a case in which the death of a parent by the hand of a child can be less than murder, except in self-defence. A blow from a woman or child would’ not, except in very extraordinary cases, mitigate thé offence to manslaughter, because a blow given by such a person ought not, in a rational mind, produce that transport of passion on account of which the law attributes the homicide to human infirmity. The same reason, I think, should apply to a blow given by a parent. Forbearance would seem to grow necessarily out of the relation of the parties, and in general will be found to exist except in those fiery tempers which equally disregard -the laws of God and man. But the case does not require it, and 1 do not propose to prosecute this discussion any further.

No inflexible rule can be laid down to govern every case. *104There must be some modification to every rule, growing out of the infinite diversity of human transactions. It may be that some allowance should be made in the case of the prisoner. The rudeness of his conduct towards his father may have grown out of defective moral discipline, and that the bloody tragedy which terminated in the murder of his father is but the natural result of that father’s evil example. But be this as it may, he has had the advantage of a most humane and favorable charge from the Circuit Judge, and we are unable to find any error in the verdict of the jury. The motion for a new trial must therefore be dismissed.

Wardlaw, Frost and Withers, JJ., concurred.

*Motion refused.*