(December Term, 1843.)
1. If one seek another and enter into a fight with him with the purpose, under the pretense of fighting, to stab him, if a homicide ensues, it will be clearly murder in the assailant, no matter what provocation was apparently then given, or how high the assailant's passion rose during the combat, for the malice is express.
2. The omission of North Carolina in an indictment found in a court of this State, where the name of the county is inserted in the margin or body of the indictment, is not a cause for arresting the judgment.
3. Where the indictment set forth the time of the commission of the murder in these words: "On the third day of August, eighteen hundred and forty-three," without saying "the year of our Lord," or even using the word "year": Held, that although this defect would have been fatal at the common law, yet it is cured by our act of Assembly of 1811 (Rev. Stat., sec. 35, sec. 12).
APPEAL from Bailey, J., at Fall Term, 1843, of EDGECOMBE.
Attorney-General for the State.
B. F. Moore for the prisoner.
This was an indictment against the prisoner for the murder of John Bedford. The testimony was as follows:
Benbury Bradley swore that he was at M. P. Edwards' on the day of the election in August last, and that the prisoner and the deceased were there; that Edwards' house has a piazza in front, next the public road, in one end of which he had a room used as a storeroom, and there is a piazza also extending from this storeroom along the side of the house; that there is an entrance into the piazza in front of the house, and also one into the piazza, which extends along the front of the house; that there are also two doors leading into a large room — one from the front piazza and one from the side piazza — and a door leading from the front piazza into the storeroom; that he first saw the prisoner and the deceased in the storeroom, where Edwards kept his liquor; that the deceased was lying down upon the floor, and the prisoner commenced slapping (114) him very hard with his hand, pulling him and cursing him, and telling him to get up; that he continued to do so, until he made the deceased angry; that the deceased then sat up on the floor, took his knife out of his pocket and attempted to draw it; that before he opened it the witness took it away from him; that the deceased then lay down again; that the prisoner again began to slap him and pull him about as before, and continued to do so until the deceased got on his feet and went near the door leading into the front piazza, and then the prisoner pushed him out of the door into the piazza; that the deceased then lay down in the piazza about fifteen feet from the door of the storeroom, and had not been lying there long when the prisoner began to slap him again; that the deceased told him to let him alone, that he was not pestering him and did not want any fuss with him; that the prisoner continued still to slap him, until the deceased got very angry, rose, and struck the prisoner with his fist; that the deceased gave the prisoner two or three blows, but the witness could not say that the prisoner returned the blows; that they were parted; that prisoner went to the piazza doorpost and put one hand on the railing and the other on the post, with his back to the deceased; that the deceased came up behind him while standing in this position and struck him with his fist or open hand and tried to scratch him; that the prisoner then turned round, and blows were exchanged between them, and they were parted a second time.
This witness further stated that the deceased then went into the large room of the house, and the prisoner stood at the door leading from the yard into the piazza; that the witness was near him while standing there, and seeing him rub his fingers, asked him what was the matter with his hand; that the prisoner replied that he had cut it foolishly with his own knife, for he had it open and it shut up and cut his hand; that after standing there a short time, the prisoner went into the same room that the deceased had entered; that the deceased returned into the piazza and into the yard in front of the house, and the prisoner went out of the large room into the side piazza, and had got out of the door of the piazza, when the witness and John B. White met him near that (115) door; that the prisoner said to them as he met them, "Boys, don't see me, I intend to cut his coat off"; that they told him "that would not do, to put up his knife and quit such as that"; that the witness heard him shut his knife, and he thought he put it in his pocket, but of this he would not be certain; that the prisoner passed by them as they attempted to go into the door of the side piazza; that the witness and White had got on the block of the door, when the witness heard the deceased say, "Harry, what in the h-ll fire do you mean?"; that the prisoner replied with an oath, "What do you mean?"; that the witness was then about 25 or 30 feet from them; that the deceased had met the prisoner at the corner of the house and they engaged as they met; that the prisoner cried out, "Part us, boys!" three or four times; that the witness and White went towards them, and just before they got to them they parted themselves; that the prisoner met them and, as he passed, said "he wanted some water to wash his hands," and passed through the house into the front piazza; that the deceased went towards the road and rested against the paling. The witness stated that he soon went to him, and when he got there he was lying on the ground, and upon examination, the witness found he was cut under his left breast; that he carried him into the house and discovered three cuts upon his arm, two in his abdomen, one of which was near his groin; that his intestines came out, and the witness discovered the next day a wound upon his hip; that he had seven wounds in all, and that he died the night of the next day.
Upon the cross-examination of this witness he stated that the prisoner was not angry when he was slapping the deceased; that Edwards, the owner of the house, had requested the prisoner, after he had commenced slapping the deceased, to get him out of the storeroom; that the witness the next day saw scratches on both sides of the prisoner's face which looked as if an attempt had been made at gouging. Several other witnesses were examined, who corroborated this testimony. One of them stated, in addition, that when the prisoner and the deceased (116) met the last time they reached out their hands and took hold of each other about the same time; that the prisoner commenced striking the deceased under his left arm, giving him three blows — perhaps four; that witness could see the deceased's right arm, but he caught hold with his left; that after they were separated and the prisoner was coming towards the house, the prisoner called for some water, and said "he believed that d____d scoundrel had cut his finger."
The prisoner's counsel put his defense upon two grounds: first, that the evidence was not sufficient to satisfy the jury that the deceased died of the wounds which he received from the prisoner, and, secondly, if they should be satisfied of this fact, it was contended that it was not a case of murder, but one of manslaughter only.
The court charged the jury that they must be satisfied that the deceased died of the wounds, and that they were inflicted by the prisoner; that if they were not satisfied of this, they ought to acquit the prisoner altogether; but if they should be convinced that the wounds which he received caused his death, and they were inflicted by the prisoner, they would then inquire whether he was guilty of murder or manslaughter; that the crime of murder was the unlawful killing of a reasonable creature in being with malice aforethought, either expressed or implied; that manslaughter was the unlawful killing of another, but without malice; that if two men upon a quarrel come to blows, no undue advantage being taken on either side, and death ensues, although by a deadly weapon, it would be only manslaughter; that if the prisoner, while engaged with the deceased in the piazza, his blood being excited by the blow he received from the deceased, had drawn his knife and stabbed him, and death had ensued, it would have been manslaughter, and not murder; that if, having received blows and scratches from the deceased in the piazza, the prisoner in a very short time met the deceased at the corner of the house, and, being excited by passion and smarting under the blows he had just received, had in a moment of sudden revenge stabbed the deceased, (117) it would be manslaughter only; that if the prisoner, when he passed the witnesses, saying, "Boys, don't see me, I intend to cut his coat off," intending nothing but sport, or even malicious mischief, and did not intend to use the knife upon his person, and when they met they engaged in mutual combat, and in the heat of blood the prisoner stabbed the deceased, so that he died, it would be manslaughter, and not murder. But if at the time he passed the witnesses, he then intended to use his knife upon the person of the deceased, and either take his life or do him some grievous bodily hurt, and when he met the deceased he carried his intention into execution by giving him several mortal wounds, of which he died, he would be guilty of murder, although at the time he did the act he was excited by passion; and for the purpose of satisfying their minds upon the subject, they should look at all the circumstances of the case.
The jury found the prisoner guilty of murder. The prisoner's counsel then moved in arrest of judgment because the words North Carolina were not mentioned in the bill of indictment.
The bill of indictment was found in Edgecombe Superior Court of law. The caption was "Edgecombe County Superior Court of law, second Monday of September, eighteen hundred and forty-three." In the body of the bill, the offense was laid to have been committed "on the third day of August, eighteen hundred and forty-three, in the county of Edgecombe."
The court overruled the motion in arrest of judgment and pronounced judgment against the prisoner, from which he appealed to the Supreme Court.
The counsel for the prisoner complains of only (118) one part of the instructions to the jury. It is that in which his Honor stated that if at any time the prisoner passed the witnesses and said to them, "Boys, don't see me, I intend to cut off his coat," he intended to kill the deceased, and when he met the deceased carried that intention into execution by stabbing him, he was guilty of murder, although at the time he did the act he was excited by passion. It is said this instruction was erroneous because it put the grade of the offense on the existence of an intention to kill when the prisoner was going to the deceased, whereas such an intention is common both to murder and manslaughter, and the inquiry, therefore, in each case is whether the intention was inspired by malice or deliberate ill will towards the deceased or was the impulse of sudden passion and heat produced by adequate provocation; and it is further said that here the instruction assumed that such heat of blood had been excited by the previous combat and continued to the fatal strokes. It is thence inferred that the killing was but manslaughter.
The first step in our inquiry is whether that be the proper construction of the language of the judge; whether the excitement of passion was assumed, in the hypothesis, to have been created by the first contest and to have continued to the last. We think it is not. It is to be recollected that there was a combat in the piazza, and that the case presents something from which it might have been contended for the prisoner that there was also a sudden mutual combat when the parties again met in the yard for the last time.
The counsel for the prisoner insisted on the trial that the offense was manslaughter; but whether it was so by reason that the provocation arose out of the first encounter or out of the last conclusively the exception does not explicitly state. It seems to us that his Honor could not have understood the former, and that in closing this part of his (119) instructions he had in view an excitement that might have arisen, or was supposed to have arisen, subsequently to the prisoner's passing the witness. As to the heat of blood produced by the previous combat, it had just been disposed of in a manner most favorable to the prisoner by the instruction that if the prisoner, in a short time after receiving the blows and scratches in the piazza, and being excited by passion and smarting under those blows, had in a moment of sudden revenge stabbed the deceased, it would be manslaughter only. Of the correctness of that position in point of law we are not called on at present to express an opinion. As applicable to the facts in this case, it might perhaps be found upon reconsideration to go beyond the law in allowing a cruel and inordinate revenge, executed with a deadly instrument not shown openly, for a very trivial offense — and that induced by the prisoner's own outrages. But this passage in the charge makes it very clear that his Honor did not have reference in the latter part of his observations to an excitement of passion from the fight in the piazza, since that would render the two parts of the charge directly contradictory, for in the one he says expressly that killing while excited by passion from those blows would be manslaughter, while it is attempted to be inferred that in the other he meant that the killing was murder, though perpetrated under the same excitement of passion. Besides, the particular terms of the part of the charge excepted to, which are, "although at the time he did the act he was excited by passion," show that the passion meant was one springing out of the last contest itself. Indeed, but a moment before the court had treated the prisoner as being, when passing the witnesses, free of passion and possessed of deliberation, by speaking of him as then intending some sportive or malicious mischief short of serious bodily injury, or as then intending to kill the deceased. The fair interpretation, therefore, is that before mentioned — that although something might have arisen when the prisoner got up to the deceased to rouse his passion, yet that would not extenuate the homicide (120) to manslaughter if, when the prisoner passed the witness and went up to the deceased, being before this new provocation arose, the prisoner had formed the intention to kill. And that position we think good in law. We do not indeed perceive anything that shows the prisoner to have been under a transport of passion during the last encounter. Far from it. But supposing that to have been so, yet if the prisoner sought the deceased and entered into that fight with the purpose, under the pretense of fighting, to stab him, it was clearly murder, no matter what provocation was apparently then given or how high the prisoner's passion rose during the combat, for the malice is express and was promptly wreaked, and puts the idea of provocation out of the case. If the prisoner meant to insist that his blood had not cooled, and that there had not been sufficient cooling time between the first and last meetings, he should have prayed an instruction distinctly to that effect. Having omitted himself to do so, he cannot complain of the omission of the court. But we hold the opinion that he would not have been entitled to the instruction if he had asked it, for although the provocation supposed was recent, yet it does not seem to have wrought any height of passion suspending reason, even at the very first, and even if it did it is evident that it had subsided. It cannot be conceived that a person who had received so very slight a hurt from a drunken man in return for the aggression practiced by the prisoner; who voluntarily terminated the scuffle and calmly went into the house, giving no external indication of anger; who in the interval held such mirthful or guileful discourse with the witnesses as to his intentions towards the deceased; who was advised by those persons to desist, and yet proceeded to the deceased and, as they met, expressed a desire to be parted — which must have been pretended — and uttered a mock cry of distress during the affray, when he was giving the other party fatal stabs, to the number of seven, and was receiving no serious hurt himself; who of his own accord separated from his antagonist and had the coolness, instantly after this mortal combat, to call for water to wash his hands and frame the (121) falsehood that he believed the deceased had cut his finger — we say it cannot be conceived that a person thus acting was under a sudden transport of passion. The vengeance was that of a bad heart and deliberation, and not of infirmity from heat of blood. There ought not, therefore, to be a new trial.
There is also a motion in arrest of judgment for alleged defects in the indictment. The first is that it does not appear in the indictment that it was found in North Carolina, or that the offense was committed in this State; but the county (Edgecombe) is in the margin and in the body of the bill, and that is sufficient; so are all the precedents in the books. The indictment was found in the Superior Court of Edgecombe, and the judge must know that he was holding a court in that county of the State and for the State of North Carolina.
Another objection is that the indictment sets forth the time thus, "on the third day of August, eighteen hundred and forty-three," without saying "the year of our Lord," or even using the word "year." This, we think, would have been fatal at common law, and we cannot but express a regret that there should be needlessly a departure from the ancient forms in a point in which conformity is so easy and contributes so much to precision, even though it be not necessary. But we are obliged by previous adjudications to hold that under the act of 1811, Rev. Stat., ch. 35, sec. 12, this indictment is sufficient. Indictments in the county and Superior Courts are now placed on the same ground In S. v. Dick- ins, 2 N.C. 406, the time was stated in figures, and held good, because the meaning was as well known to the court as if expressed in letters, and the indictment was therefore "intelligible," as required in the act of 1784. So when the caption was "Fall Term, 1822," and the indictment charged the time to be "the first day of August in the present year," it was sustained. S. v. Haddock, 9 N.C. 461. It will be observed that in neither of those cases did the indictment expressly refer (122) to the Christian era or any other epoch, but they were nevertheless sustained as expressing a certain time because the court understood them as referring to the era of our Saviour, as that is the universal reference in judicial proceedings here as well as in common usage. This indictment was found in the year 1843, and that being in fact the year of the Christian era, it is judicially intended to mean the year of that era. Consequently, the opinion of the Court is that there is
PER CURIAM. No error.
Cited: S. v. Dula, 61 N.C. 441; S. v. Walker, 87 N.C. 543; S. v. Gooch, 94 N.C. 1014; S. v. Hensley, ib., 1035; S. v. Pankey, 104 N.C. 845; S. v. Arnold, 107 N.C. 864; S. v. Van Doran, 109 N.C. 86; S. v. Francis, 157 N.C. 614; S. v. Ratliff, 170 N.C. 709.