STATEv. NORRIS,2 N.C. 429(1796)
Superior Court of North Carolina
A motion to postpone a trial for murder on account of the great public excitement against the prisoner, was refused. WILLIAMS and HAYWOOD, JJ., differed as to the questions whether a juror could be asked on oath whether he had expressed an opinion unfavorably to the prisoner. The State may discredit its own witness by proving that the witness, on former occasions, had given a different account of the transaction from that which he relates in court. A person who was violently abused and beaten, made his escape, ran to his own house, 80 yards off, got a knife, ran back, and upon meeting, with the deceased, stabbed him. It seems that he is only guilty of manslaughter. If, upon the second meeting, the prisoner had disguised the fact of having a weapon, for the purpose of inducing the deceased to come within his reach, the killing would have been murder.
INDICTMENT for the murder of Nathaniel Daves, and not guilty pleaded.
The prisoner was brought to the bar to take his trial. Mr. Hay read a paragraph from a paper printed in this place, and circulated on Monday last, stating the homicide committed by the prisoner in terms of aggravation, and moved on that account for a postponement of his trial, apprehending that the public mind was too much irritated at present for the prisoner to have a fair trial.
WILLIAMS, J.
The people in this country do not take for truth everything that is published in a newspaper. The jury well know they are to be governed only by the evidence and the law. I trust no one will be so much prejudiced against the prisoner as to be led to an unjust condemnation. It will be the duty and the business of the Court to see that he had every advantage the law allows him. It is not to be apprehended that a jury of this country will do him wrong; their humanity is proverbial.Page 340
(430) HAYWOOD, J.
I disapprove highly of the publication. The cause, however, is in course of trial, and must come on.
The clerk began to call over the jurors, after informing the prisoner these were the men who were to pass upon his trial, and that he must challenge them if he thought proper, as they came to the book to be sworn.
Mr. Hay said the killing of Daves by the prisoner had been a subject of very general conversation; that the fact had been related in a newspaper under aggravating circumstances, and though that publication might not have been made with a view of preoccupying the mind of any one who was to take a part in the trial, yet in reality it may have had the effect of prejudicing the public mind in general against the prisoner; that he had but too much reason to apprehend it had produced such effects. He therefore moved when the prisoner objected to a jurorpropter effectum, or for favor, as it is called, that the juror might be examined upon oath whether he had expressed an opinion unfavorable to the prisoner, as otherwise it would be difficult for him to produce any satisfactory proof of the fact, having been confined and visited only by one friend, and not knowing until the moment the juror is offered whether or not that person would be upon the panel. Great part of the jurors being talesmen, summoned this morning since the sitting of the court, had he ever heard of any man having expressed an unfavorable opinion, not knowing he would be summoned as a talesman, it is not to be expected the prisoner could be prepared to prove his exception, however true it might be, unless it could be supposed he had prepared himself to support his exception against every man who had given such opinion, and that would be unreasonable.
Mr. Jones opposed the motion, saying there was no precedent for such a procedure, and he hoped the Court would not now make one for the first time in favor of this prisoner, who should be tried as all other prisoners have been.
HAYWOOD, J.
I do not at present recollect ever to have seen such a practice, and I am induced to think there is no precedent of this kind.
WILLIAMS, J.
There is none.
Mr. Taylor then cited 3 Bl. Com., 363. A person about to be sworn as a juror may be challenged for any of the causes there stated; or even where the challenger hath no principal cause of challenge, but only some cause of suspicion, the validity of which must be left to triers. He also cited 3 Bl. Com., 364, where it is laid down from Co. Litt., 158 b,Page 341that a juror may himself be examined on oath ofvoire direwith regard to such causes of challenge as are not to his dishonor or discredit. He also cited 4 Bl. Com., 352, where it is said the (431) prisoner may have the same challenges for cause in a criminal as the plaintiff or defendant may in a civil case, and where a challengepropter effectumis mentioned as one of them. He argued that the expressing an opinion by the person offered as a juror, if not a principal cause of challenge, as he thought it was, at least is such a cause as might reasonably induce a suspicion of his not being indifferent and impartial towards the prisoner; and if a prisoner in a criminal case had a right to except to a juror, suspecting him to be unfavorable, there must be some mode of trying and discovering the truth of the exception, and there was no reason in a criminal case for resorting to a different mode of trial from that used in a civil one; and if on a civil case, for the purpose of reaching the disposition of the juror towards the party, the law would suffer a juror to be interrogated on his oath with respect to the truth of the cause alleged, to show him not impartial, it is equally necessary that a prisoner, where life is in danger, and for whom the law professes so much tenderness, should be also entitled to have his exception tried in the same way, and to the same means of investigating it.
HAYWOOD, J.
Upon reflection, I am of opinion the motion is (432) proper and the person offered may legally be interrogated on oath, as to any unfavorable opinion he has expressed against the prisoner. I can see no reason why the exception is not allowable as well in a criminal as in a civil case, nor why the juror should be sworn in a civil case and not in a criminal one. It is rather more necessary in the latter, as it is of more importance to the prisoner concerned to have a good opinion of his jury. If a prisoner is at all entitled to the privilege contended for, it is as necessary to allow it in the case before us as in any other. There is reason to suspect that the publication just spoken of may have had some influence upon the public mind, unfavorable to the prisoner. The homicide with which he is charged has taken place in this town but a few days past. It is to be feared some ferments are caused by it, rendering it proper for the Court to be circumspect and careful that the prisoner be not prejudiced by the violence of the current opinion. We should act as counsel for the prisoner so far as to see that he has a fair trial, and that he is not denied the benefits the law has provided for his defense against injustice.
WILLIAMS, J.
I cannot think the prisoner is entitled to interrogate a juror on oath as asked for. This man should be tried as all othersPage 342have been. Why should we extend privileges to him that were not granted to the man tried yesterday for murder? That man's life was as dear to the public yesterday as this man's is today, and we allowed no such privilege to him. I have never known such a thing even asked for before in any criminal case. The office of a judge is indeed a very arduous one; I feel sensibly how disagreeable it is to sit upon a trial when the life of a fellow-citizen is in jeopardy; but when we once undertake it, we should discharge it faithfully, regardless of those sympathizing feelings for the prisoner which are so apt to be experienced on such occasions. We are not to be influenced in any respect by them. It is not a true position that we are to be the friends of the prisoner. We are to see that he has a fair trial, and this is all that is required of us.
HAYWOOD, J.
I am intrusted in some measure by my country with this man's life. He may be a bad man and deserve death; but I will not prejudice him, neither will I for any earthly cause be prevailed upon to deny him any privilege he is entitled to. I think upon consideration he is entitled to that which his counsel ask for him; and were the whole world here present to demand his execution, I would not refuse him an advantage that should be conceded to him. Whilst I sit here, the public cry shall never seduce or impel me into the (433) adoption of a measure my judgment disapproves.
Mr. Hay:In order to get over the embarrassment this motion is likely to produce, and the warmth it has given occasion to, I propose that where a juror is challengedpropter affectum, or for having expressed his opinion, his name shall be set down and noted as one challenged for cause, and that the clerk then proceed with the panel; and if the panel shall be gone through and the jury not completed, that then we consider of the jurors whose names are noted, and how the exception shall be tried. Perhaps we may get a jury before the panel is gone through, and then it will not be necessary to consider further of the exceptions.
WILLIAMS, J.
That proposal is a proper one. I think it should be adopted.
HAYWOOD, J., assented.
The jurors in the panel were then offered to the prisoner, and a jury was completed; and they were sworn and charged with the prisoner.
The evidence on the trial was as follows: On Saturday night NorrisPage 343and Young came to the house of Mrs. Ramsay, where were Daves, Dudley, Ramsay, Campbell, and others. Young remained in the piazza, Norris came in and sat talking with Ramsay for some time. Campbell went into the piazza to Young, who was intoxicated. He talked of Daves, saying he understood Daves had said he could whip Norris, and desired Campbell to tell him to come out. Shortly after this Norris came out. They moved towards the door, Campbell went in, leaving Young and Norris in the piazza, and told Daves to come out. Daves and Dudley pulled off their clothes and went into the piazza. Young and Norris had gone off. Dudley and Daves went into the street, and Norris came walking from the upper part of the town, down towards his own house, passing that of Mrs. Ramsay. Daves and Dudley went towards his and met him, and Dudley said to him, "You came here to breed a quarrel." Norris answered he had not. Daves replied, "You did." Norris answered, he did not. Daves said, "You are a damned liar." Norris replied, "Whoever says I came here to breed a riot is a damned liar." Said Daves, "You are a damned liar," and tripped up his heels and threw him on the ground. Norris rose and stepped towards him. Daves struck him. Norris desired Campbell to take notice of that. Dudley said to Daves, "He will make you pay for that; take satisfaction." Daves stepped to him and gave him three or four blows, upon which Norris ran off towards his own house. Daves (434) and Dudley walked down the street, calling for Young, who met them with his coat off. They demanded of him if he meant fighting, and why he had stripped; he answered that he was not for fighting, and that he had stripped to see fair play, hearing the attack upon Norris. At this time the witness heard Norris, say, "Damn you! you struck me, did you? Come on; I am now ready for you." Daves said, "You have a stick or some weapon you want to kill me with," and stepped towards him, and he then cried out, "I am stabbed!" The witness ran to the place where he was, and he was stabbed on the left side of the belly, with a wound three or four inches in length. Upon the cross-examination of the witness he said Daves kicked at Norris after he fell in the first combat, near Mrs. Ramsay's, and that Norris' house was about 50 yards from the place where Daves was stabbed; that he had gone some distance below Mrs. Ramsay's towards Norris' before they met the second time, and that Norris was gone three or four minutes before he returned, and that the fighting happened about an hour in the night. This was Campbell's testimony.
The evidence of Young was that he met Norris at the race-ground on Saturday, and rebuked him for quarreling the night before with Daves. Norris answered, "It is all settled; we drank together at the path; it wasPage 344occasioned by liquor." "At night we came down by Mrs. Ramsay's. He asked me to go in, but I declined. He desired me to wait a little for him. I waited in the piazza. Campbell came into the piazza. I walked down the street, and got just below Mrs. Thompson's, where I saw Mrs. Thompson standing. Dudley came out hallooing for me. I answered him and pulled off my coat. He came up and caught me by the shoulder, and asked if I had come to breed a riot, to which I answered, I had not. Daves also came up, and immediately afterwards I heard him cry out, he was stabbed, and turning that way I saw Norris run off. I think it was 80 yards from the place where Dudley and Daves came up to me and where Daves was stabbed, to Norris' house. Dudley halloed so loud for me that I think he might have been heard to Norris' house." A physician who attended Daves swore he died of the wounds he received that night.
Dudley deposed that on Friday, himself, Daves, and Norris came together into town from the race-ground; that they stopped by the way at a house in town, and were drinking together. A conversation (435) arose about one McRae. Daves abused and Norris spoke well of him. Some warm words passed. Daves pulled off his clothes and went downstairs, bidding Norris to follow. Norris remained where he was, and Daves came in asking Norris why he had not followed him. Norris answered, "That is not the way I mean to fight; I will burn powder with you." We all went home, and next morning I met Norris, who asked what had been the matter last night, saying he had come to see about it, and seeming to be uneasy at what had happened. He inquired for Daves, who about that time came up. They conversed together. Daves said, "It was your fault, but I don't care; I never bear malice." Norris replied, "It was not me, but rum; let us go to Dick's and drink something." I proposed they should meet at the races and drink together, which they agreed to. At the race-ground he called to Daves and myself to come and drink with him, and we did so. After drinking together we parted. After dark, at Ramsay's, Norris came in and sat down. We sat down to supper, and Norris was asked to sit down, but declined and went out. Campbell was missing, but after supper came in. Daves asked him what Norris came for; Campbell said he supposed to breed a riot. Daves and myself then pulled off our clothes and went into the piazza. Norris and Young were not there. Daves called out for them, saying they were cowards. Norris came up, and Daves met him. I went off, calling for Young; he answered, "I am here." Daves and Norris had some words, and Daves tripped him up. Norris rose and Daves struck him. Norris required Campbell to take notice. It was just at this time I heard Young answer. DavesPage 345struck three or four more blows, and Norris ran off. We went to Young and stood talking with him, when Norris came up. Daves turned and went towards him, saying, "You have got a weapon or a stick," which Norris denied. Mrs. Thompson called out, saying, "Norris has a sword or gun; he will kill you. Do not go to him." Daves, however, and Norris met in the street opposite to where we were. As they met, Norris made a lunge. Daves cried out he has stabbed me, and fell. Young and myself went to him. His bowels were out. We carried him to Mrs. Ramsay's, and in two hours he died. At the last meeting, I did not see Daves strike before the stab. It was 80 or 100 yards from Thompson's place, where the stab was given, to Norris' house. It is about 20 yards from Mrs. Ramsay's, where the first combat was, to Thompson's. When Norris returned, he came running, and (436) immediately after he gave the stab, ran off. I followed him, but did not overtake him, and returned. When Norris came into the house at Mrs. Ramsay's, Daves said to me, "Mrs. Ramsay does not want Norris here. You had better ask him to go out." I replied, "No; he will go presently."
Mrs. Thompson deposed as follows: That on Saturday night she was sitting in an outhouse, and heard a great noise, and a woman's voice, and saw Mrs. Ramsay in the street, and heard very heavy blows, and Mrs. Ramsay saying, "Cousin Ramsay, don't strike, too." Just at this time Young came to her where she was standing in the street; she asked who were making that noise; he answered that Dudley and Daves were beating Norris; requested her to take his coat, saying he could not stand that, alluding, as she supposed, to the heavy blows that were heard. Immediately a man came running, Young asked who he was; he said, "Norris." "What is the matter?" said Young. "Don't run." Norris replied, "I can't stand three or four men." Young said, "You must stand; it is cowardly to run. I will stand by you." Dudley and Daves came running up, and Norris, breaking the hold Young had on him, ran off. Young stepped back, saying to Daves and Dudley, "Stop!" They asked him whether Norris had come by, he said yes — "But what is the matter?" They said, "Do you stop us? Do you want to fight?" He answered, "No." Daves then came to where she was, and said Norris had abused Mrs. Ramsay unmercifully, and that he had resented it. At this time Dudley and Young were in the street in high words, and Norris came back running. Dudley and Young stood some small distance from her and Daves. Norris stepped on the other side of the street and stood a short time. She said to Daves, "Do not go to him; perhaps he has a weapon." Daves replied, "Damn him; I am not afraid of him, weapon or no weapon," and went round the others from her, towardsPage 346Norris; and said to Norris, "Have you a weapon?" he answered, "No." "Have you a club?" He answered, "No." Then said Daves, "Do you think you can stand a man now?" "If I can't," said Norris, "I have a man that can." Norris then cried out, "Stand off, Mr. Daves, or the worst is yours." She then heard two or three blows, and Daves cried out, "I am stabbed!" Norris retired a small distance and stood. She saw him no more afterwards, that night. When Norris returned, he did not advance upon Daves, but ordered Daves, when he advanced, to stand back. Two or three blows passed before the stab, and she thinks from the manner of Daves' advancing they were given by him; he (437) went towards Norris as if going to attack him. She heard the blows that first passed near Mrs. Ramsay's; they were very heavy.
Several other witnesses were sworn, but they related nothing material. Mr. Briggs said on Saturday, the day preceding the night when Daves was stabbed, he told him he expected he would have to fight that night, but did not say whom. Mr. Dick recited the quarrel between Daves and Norris on Friday, at which time Dudley said to Daves, "Say what you please to him; if you can't flog him, I can." An old lady swore Daves had obtained a judgment on a warrant against some man, and about three weeks before his death left it with her, telling her to keep it, and if any accident happened to him, and he should die, that she might collect the money, and a day or two after his death Dudley came for it. Another witness said the day before yesterday Dudley was speaking, after coming from court, of a trial for murder which had taken place that day, and of the acquittal of the prisoner, and said upon that occasion, "I will bet £ 100 Norris will not be acquitted. If he should, the man who clears him ought to be put in his place." Another witness said there were broils between Norris and the family of Dudley, but none that he knew of between Dudley and Norris.
Jones, the Solicitor-General, then moved to have leave to introduce witnesses to prove a variance between what Mrs. Thompson, one of the witnesses, had sworn in court and what she had related in several conversations to others. He admitted the rule in civil cases was that the party producing a witness should not afterwards be permitted to discredit that witness; but the rule had never been adopted as he knew of in criminal cases. In civil cases the party converses with the witness before his introduction, and knows what he will swear, and is generally acquainted with the character of the witness and with the degree of credit he is entitled to. When he produces a witness to the Court, it is an admission on his part that the witness is credible, as he claims a benefit from the testimony. It is proper in such cases he should be boundPage 347by his admission. But the reason of that rule will not apply to criminal cases, where the prosecution is carried on by the officer of the public, not at the instance of any particular prosecutor. That public officer is a stranger to the persons he produces as witnesses; he has, in general, no opportunity of knowing either anything of the character of the witnesses, or of what it is he will swear, otherwise than as he (438) collects it from others in the course of conversation.
Hay and Taylor objected to the attempt of the Solicitor-General to discredit his own witness. They insisted the rule of not allowing this to be done in civil cases was equally applicable to criminal ones.
PER CURIAM.
The rule is so in civil cases. Let authorities be produced to show how it is in criminal ones.
The gentlemen on both sides searched for authorities, but could find none.
WILLIAMS, J.
I think the Solicitor should be allowed to discredit the witness, if she has varied from the relation she now gives. Were he not allowed to do this, a prisoner and his friend might tamper with worthless persons to swear for the prisoner, and secure them from any impeachment of their credibility by procuring them to relate in public a story tending to establish the guilt of the prisoner, and by that means cause them to be summoned by the public officer and introduced for the State, and, when sworn, to depose directly against what they had publicly related. Were not the Solicitor allowed to impeach such evidence, a wide door would be opened for the acquittal of the prisoner by false testimony. The prisoner would have nothing more to do than cause his witnesses to be introduced on the part of the State. They might therefore pass for truth any falsities they might think proper to utter. It is a very easy matter to procure them to be introduced for the State, as the Solicitor-General, not being acquainted with the witnesses, would think it is his duty to summon and introduce all such persons as he was informed could swear anything against the prisoner.
HAYWOOD, J.
No light that can be thrown on this subject should be excluded, nor any means left untried to place the fact in its true point of view. The witness has sworn to some circumstances which are very material in the present case; and if untrue, they should be rectified. If she has related the fact differently to other persons, it is a good reason for giving the less credit to her relation now.
The witnesses to discredit her testimony were called. One of them related the story she told a few days ago, in which several circumstancesPage 348now mentioned by her were omitted. Two witnesses were called to support her credit. They said she had told the story in their presence at different times exactly as she now told it in court.
This closed the evidence on both sides, a summary of which stands thus: On Saturday night, Norris and Young returning from the races, Norris went in at Mrs. Ramsay's, whilst Young waited for him (439) in the piazza. In the house, Norris talked with Ramsay, sitting on the bed, and supper coming on, he retired and went up the street, Young going down. Dudley and Daves understanding from Campbell they had come there to quarrel, stripped, went out calling for them and saying they were cowards. Norris at this, going down the street, passed near Mrs. Ramsay's, not far from which they were. Daves accused him of coming there to breed a riot; Norris denied it. Daves insisted upon it, and proceeded to abusive language, which Norris retorted and Daves repeated, tripping up his heels and kicking at him whilst on the ground. Norris rising, Daves struck him, and Norris called to Campbell to take notice. Dudley then advised Daves to take satisfaction, and Daves struck Norris three or four blows. Norris ran off towards his own house, distant from Thompson's, which was 20 yards below Ramsay's, 50, 80, or 100 yards. Daves and Dudley went down the street towards Thompson's, where they found Young stripped. Dudley stood in the street, opposite Thompson's, conversing with Young. Daves also stood in the street, near Thompson's, conversing with Mrs. Thompson. Norris, after an absence of three or four minutes, returned running, and, as Mrs. Thompson says, stopped in the street opposite to them; as the other witness says, he ran up to Daves without stopping. Daves discovered him, and went towards him. Mrs. Thompson and Dudley say Daves inquired whether he had a weapon, club or stick, which Norris denied, and they met. Campbell says Norris cried out, "Come on; I am ready for you." Mrs. Thompson says blows passed upon their meeting, which she believes were given by Daves. Dudley says he did not see Daves strike before the stab; the other witnesses say nothing of blows at this time. Immediately upon the last meeting, the deceased received the mortal wound of which he died.
Jones, Solicitor-General.Mr. Hay, and then Mr. Taylor, answered the Solicitor.
(445) HAYWOOD, J.
The case before us is of awful importance; every circumstance in it is worthy of attention and consideration. I am pleased at the solemn silence which hath prevailed during the progress of this trial. The offense of which the prisoner is indicated is that of thePage 349murder of Nathaniel Daves. If he is guilty upon the evidence, weighed by the law of the country, public justice requires he should not be screened by any misplaced compassion; and if upon the evidence he is not guilty of the crime imputed to him, no influence whatsoever should prevail to hinder his acquittal. Whether he be guilty or not depends upon the law and the fact.
Before we proceed to examine the fact, we should clearly comprehend what is meant by the term murder. To fix the attention only to such circumstances as are material to be considered now, it will be sufficient to say it is a killing with malice prepense. The other parts of the definition have been fully given by the Solicitor-General. Malice prepense is a legal term that needs explanation. It does not signify ill-will or malevolence against an individual; it means, as some authors express it, a disposition to do evil; as others, the symptom of a wicked, depraved, and corrupted heart; as others, the sign of a heart regardless of social duty, and fatally bent upon mischief; by others, it is termed a circumstance attending the fact that cuts off the slayer from all manner of excuse. All of them being only different modes of representing the same idea. By this latter explanation is meant that when the killing is without any justifying, excusing, or alleviating circumstance, it is then murder. There are a great variety of such circumstances; for instance, where the killing is committed by an officer in executing the sentence of a proper tribunal, the killing by such authority and for such a reason is a circumstance that justifies the party. So, also, if a man kill another who is attempting to kill or rob him, or the like; here the killing, being with a design to prevent the perpetration of as great an evil attempted to be brought upon an innocent person, is a circumstance that justifies the deed. If the man doing a lawful act in a proper manner undesignedly kills another: here the killing, being done without any design to kill, and without any negligence in the party killing, is a circumstance which excuses him. So if the party slaying hath been fighting with another, and declines the combat, and the other press him so hard that he is obliged to kill him to prevent his own destruction or great bodily harm: this circumstance of killing to avoid his own destruction, though originally culpable in fighting with the deceased (446) at all, will excuse him from the guilt of felony. And in all other cases where the circumstances attending the fact are such as will justify or excuse the party, he is not guilty of murder, because the circumstances are not such as leave him without excuse. Also, although the killing may not be attended with circumstances of justification or excuse, yet it may be attended with such circumstances as will mitigate his offense, and afford him something to say by way of excusing orPage 350exempting himself from the guilt of murder: as where some great and violent provocation hath been given to him by the person killed, and he in the transport and fury of his passion killeth the other, the law in such case attributes the killing to the frailty of human nature, operated upon by excessive anger, excited by the unworthy treatment of the deceased; and both law and reason says that a killing under such circumstances should not be punished with the same severity as a killing without provocation, or without a very great one, and when the mind is cool and reflecting.
The great distinction between murder and manslaughter is this: manslaughter is committed under the operation of furious anger that suspends for a time the proper exercise of reason and reflection, and which hath been stirred up by some great provocation; for there are some provocations that are not indulged with an allowance of exciting the passions to such excess, and thus a distinction is formed between the different degrees of provocation. If it be by words or gestures only, it will not be sufficient to mitigate homicide into manslaughter; but if it be a provocation by some great indignity offered to the party killing, as by spitting in his face or the like, or by falling out and fighting, so that in either case it may reasonably be presumed the blood is heated, and the passions raised to such a degree as to suspend the proper operation of the reasoning powers, the exercise of judgment and reflection, such provocation will be a sufficient one to extenuate the offense into manslaughter. But although a sufficient provocation be given, and the passions greatly excited, yet if a sufficient time intervenes for the passions to subside and cool, and after that the party provoked killeth the other, the law will deem it murder, as having not been an effect of ungovernable passion and from the frailty of human nature, but upon a principle of revenge after reason had assumed its proper station. What is a sufficient time for this purpose hath never as I know of been precisely ascertained. It hath been adjudged that an hour is more than (447) sufficient time. It seems to depend greatly upon the nature of the provocation, and must be left to the jury to decide. If in the case before them they think sufficient time did intervene, they should find the prisoner guilty, though he had been greatly provoked before; if otherwise, they should find him not guilty of murder, but of manslaughter only. Also, although the slayer hath been greatly provoked, and was agitated by resentment and anger in the highest degree, and hath not had a sufficient time for cooling before the fatal stroke given, yet if in fact he appears to be possessed of deliberation and reflection, when or just before the time he gives the mortal blow, it will be murder: as where two men quarrel, and agree to fight, and the one observes to the other, he must first change his shoes, as they would render him lessPage 351expert with the sword, and they afterwards go out and fight, and he kills the other, it is murder, because the remark he made shows deliberation and reflection; for always it is to be observed, that the law allows the offense to be extenuated only upon the ground that the slayer has not the free and proper exercise of his rational faculties, owing to the fury of resentment not unreasonably conceived.
There are other distinctions between murder and manslaughter not necessary to be now taken notice of, as they have no relation to any such case as is framed by the evidence now before the Court.
It is most proper to state only such parts of the law concerning homicide as, being compressed into a succinct compass, may serve to exhibit a clear view of the distinction between murder and manslaughter as far as regards this case. The next thing to be done is to apply such parts of the evidence as are material to the rules just laid down.
The first thing that presents itself is, Norris' going in Ramsay's house. He does not appear to have behaved illy there; from the whole of the evidence it does not appear he went there with a design to quarrel; he had retired before Daves and Dudley stripped and went out. They hallooed for him and Young in the street, calling them cowards. Daves charged Norris, when met, with a design to raise a riot; he denied it again and again, till called a damned liar, when he retorted the lie conditionally; Daves tripped up his heels, kicked at him on the ground, struck him after he had risen; and upon Norris' intimating an intention to resort to the law for redress, repeated his blows three or four times, when Norris ran off. Now the question arises, Was this a great provocation? Would such treatment excite the passions of man in general to a degree of excess? I think it would. If Norris had killed Daves on the spot, I think it would have been but manslaughter. Norris (448) returned in three or four minutes, and gave the fatal stab. If he came up and nothing more passed before the stab, as the witnesses Campbell and Dudley say they did not, then it is for the jury to consider whether the three or four minutes intervening between the blows near Mrs. Ramsay's and the stab opposite Thompson's was sufficient time for the passions to cool. If it was, the killing was murder. If it was not, the case falls under the same consideration as if the fatal stroke had been given when Daves first struck him. If the jury believe what was sworn by Mrs. Thompson, and which the other witnesses do not mention, that Daves when he advanced towards Norris after his return struck him two or three blows before the stab, they have a right to consider whether that was not a fresh provocation sufficient to extenuate the homicide into manslaughter. If, however, the jury believe there was not a sufficient time for the passions to subside, and that the blows mentioned by Mrs.Page 352Thompson did not pass, yet the circumstances related by two witnesses of Norris' having twice denied his having a weapon or club, as it tends to evince deliberation and reflection, must be taken into their consideration; and if they believe from this circumstance that he at that time had a reflecting capacity, and meant to conceal the weapon from Daves in order to draw him on, that he might kill him, then he is guilty of murder. It is proper, however, to observe that such a conclusion is in some sort negatived by Mrs. Thompson, who declares Norris told him to stand off, or the worst would be his. The jury will now take the law, the facts, and the circumstances of this case, and by a careful comparison of the one with the other, they will draw a conclusion and say whether the prisoner is guilty of murder or manslaughter. I trust I have stated the law correctly.
WILLIAMS, J.
I agree with Judge HAYWOOD except in a few particulars: He says malice is understood of a killing under such circumstances as cuts the party off from all manner of excuse. I do not think this a true position. He may have some kind of excuse, as a slight provocation or the like, or a provocation not sufficiently violent; he may, in short, have some sort of excuse, and yet be guilty of murder. I cannot think it an excuse to reduce the offense to manslaughter where two persons (449) quarrel and fight, and one goes some distance, gets a knife, returns and kills the other with it. Such disputes happen every day. If we say it is not murder to kill shortly after, under such circumstances as this man was killed, much blood will be spilt in a very short time. It will be establishing a dreadful precedent. Norris ran off from the first combat and went home; he got into his house, his castle of refuge and defense, where no one would have offered to molest him. Why did he not remain there? Why take his knife and return back 80 or 100 yards to an enraged man? Did not this show a murderous intent, and that his heart was bent upon cruelty? I think it is no matter what provocation the slayer may have received from the other, if notwithstanding that he appears to have possessed the faculty of reflecting. It is a temporary frenzy occasioned by passion, and depriving the man for the time of his reason, that the law considers and goes upon in estimating and reducing the homicide to manslaughter; but there is not any evidence in this case of a deprivation of reason, but evidence of the contrary. He denied having any weapon, when expressly asked whether he had or not. The jury will consider why and for what purpose he made such an answer. If he had any certain end in view, it is an evidence that his reason and judgment were not overturned. On occasions like the present we are not to give up ourselves to the guidance of commiseration. We ought inflexibly to do justice without regard to consequences. I am sure I havePage 353as much feeling and compassion for my fellow-creatures in distress as any man; but it is great cruelty to the public in a judge or juror to acquit a murderer from motives of compassion. It encourages such offenses; besides, how is the prisoner dearer to us than the person slain, who may have left a wife and helpless orphans to deplore his loss, deprived of their only friend, and now exposed comfortless to the world? I do not know what was the situation of the deceased, but this may be the case with persons who fall by murderous hands, and their dependents. I meant not to prejudice the case of the prisoner, but only to express my idea of the impropriety there is in showing favor. If the prisoner by his conduct has subjected himself to the punishment of the laws of his country, we were not the cause of his transgression. If any mishap befall him, it is his own fault, not ours. We should never attempt to trample upon the rules of law from motives of mercy or compassion.
The jury retired, and after some time returned, and found the (450) prisoner not guilty of murder, but guilty of manslaughter; and he was burnt in the hand and discharged.
NOTE BY REPORTER. — The cause of reporting this case with so much minuteness is that the public opinion ran very high against the prisoner, before and after his trial, and he was pronounced guilty of murder by many who were present at his trial. The jury who acquitted him were highly censured. Perhaps the learned may be of opinion, when they meet with this case, that the jury gave a proper verdict. It is possible that may become the general opinion. If so, probably some of those who are to be hereafter concerned in trials of this sort may be led to reflect on the rapidity with which a wrong opinion sometimes spreads its influence over the public mind, and to be cautioned, that a popular sentiment, however honest and well meaning it may be, may sometimes become current for want of sufficient consideration or information, and as frequently so respecting matters of judicial deliberation as any others.Cited: S. v. Benton,19 N.C. 208;Hill v. Cox,34 N.C. 322.Overruled: S. v. Taylor,88 N.C. 697.