
    The State vs. James Smith.
    
      Murder — Practice—Judge—Evidence.
    Upon questions of fact, the judge has the right to advise the jury, and aid them, with his views, in coming to a conclusion, but the ultimate decision must be left to their judgment.
    Upon the trial of an indictment for murder, it is competent for the prisoner to show in his defence that the deceased was a turbulent and violent man, and carried arms about him, if it be further shown that this was known to the prisoner, or that it was generally known.
    So, also, it is competent for the prisoner to show that, on the day before the fatal occurrence, the deceased had exhibited a quarrelsome and violent disposition, had attacked a third person, and upon the prisoner’s interfering to separate them, had threatened the prisoner.
    The general principle seems to be this: That if the general character and habits of the deceased, for turbulence, violence and treachery, were such as might have begotten reasonable apprehensions of great bodily harm, they may be shown by the prisoner, if it be further shown that they were known to the prisoner, or that there were sufficient reasons to suppose they were known to him ; so, also, that threats and particular acts of violence, known to the prisoner, and reasonably connected in point of time with the fatal rencontre, may be shown.
    BEFORE MUNRO, J., AT CHARLESTON, JANUARY TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “ The prisoner was charged with the murder of one John Saffron, alleged to have been committed on tbe 7th day of July last, in a grocery shop, in Judith near to America street.
    “ The facts of the case will be found so fully disclosed in tbe testimony, (which is herewith annexed,) as to supersede the necessity of any observation thereon.
    
    
      “ In reference to the first ground of appeal, I did exclude the evidence which was offered in reference to the character of the deceased, upon the authority of the doctrine laid down in 3 Green. Ev., sec. 27, at the same time intimating the opinion, ‘ that if it had been doubtful whether the killing was from a just apprehension of danger, and in self-preservation,’ I should have held it admissible upon the authority of Monroe's case, in 5 Geo. R. 85. "I also excluded the proposal referred to in the second ground of appeal.
    
      “ Touching the fourth ground, in the argument of the prisoner’s counsel, it was attempted to impress upon the jury the idea, that at the time the fatal occurrence took place, the prisoner was laboring under delirium tremens, or temporary insanity. On this branch of the case, I said to the jury that the burden of proof rested upon the prisoner; and that, in looking to his mental condition, they could only do so through the medium of the testimony; that in doing so they should not confine their investigations to the instant of time the blow was stricken, but should also look to it both prior and subsequent to this occurrence: in other words, when did it commence ? When did it terminate ? And from what cause’did it result ? If, from all this, they should conclude that the prisoner was not a moral agent at the time the deed was perpetrated, it was clear he could not be held to criminal responsibility ; but if, on the contrary, they should conclude that it was nothing more than the temporary excitement, or frenzy of the passions, stimulated into intensity by intoxicating liquors, the law would not hold him excusable. As to what is said in the same ground about ‘drugged liquor,’ there was not the slightest proof adduced upon the trial.
    “ The prisoner was convicted of murder.”
    The defendant appealed and now moved this Court for a new trial, upon the grounds :
    1. Because his Honor erred in refusing to allow the counsel for the prisoner to prove that the deceased was a man of a quarrelsome, violent and treacherous disposition, and apt to resort to a weapon in personal difficulties with his opponents.
    2. Because his Honor erred in refusing to admit the testimony of the witness, McFeeny, to prove that on the day previous to the, alleged homicide, he, the witness, had been attacked by the deceased; that the prisoner had intervened, and separated them, and had then acted the part of a peacemaker ; and that the deceased had then used expressions of ill-will and violence towards the prisoner, upon the prisoner’s then and there declining to engage in combat with h
    3. Because his Honor erred in charging the jury upon the facts of the case; stating to them, inter alia, that, “ if the only provocation was the conduct of the deceased, it was, in his opinion, one of the foulest murders ever committed in the land';” the expression of which opinion was contrary to the maxim, ad questionem facti, non respondent judices; and was calculated to prejudice, influence and control the jury in their verdict.
    4. Because his Honor charged the jury that temporary insanity or delirium, the result of intoxicating drinks, was no excuse or palliation in the law; whereas, it is respectfully submitted, his Honor should have charged the jury that if they believed, from the character of the- liquor drank, that the prisoner was drugged or rendered insane, or. was in a delirium, and not merely drunk, it would operate in law not only in mitigation, but excuse.
    
      Thomas Y. Simons, for appellant.
    If a man, though in no great danger of serious bodily harm, through fear, alarm, or cowardice, kill another, under the impression that great bodily injury is about to be inflicted upon him, it is neither murder nor manslaughter, but self-defence. 7 Bac. Ab., 211.
    
      On the 1st and 2d grounds. In the ease of Regina vs. Smith, 34 Eng. Com. Law Rep., 334, evidence was given that the deceased was a person who boasted of his powers as a fighter; also of his previous violent conduct when in company with prisoner, and of expressions of ill-will towards him. In the case of Bowie vs. State of Georgia, 19 Geo.* Rep. 7, the 5th ground of appeal was, because the Court refused to let the accused prove that the deceased, when killed, was a fugitive from Tennessee for some offence, and what the offence was; the Court holding and declaring, that if the prisoner’s counsel sought to show deceased a violent and blood-thirsty man, he would confine them to his general character as such. If the crime, says the Appellate Court, of which the slayer offers to prove the person slain to have been guilty, is such, that from its very nature it may stand as one among those “circumstances,” which the law considers “sufficient to excite the fears of a reasonable man,” then, perhaps, evidence that the person slain was guilty of it, is admissible; but in this case, the bill of exceptions fails to tell us what was the crime of which the accused offered to prove the deceased to have been guilty. In the case of The State vs. Zellers, 2 Halsted Rep. 220, it was decided, that evidence to show that the prisoner was in possession of land, and that the deceased was coming to commit a trespass upon it, is admissible so far as it goes to show the state of feeling of the parties towards each other, at the time of the act committed. So, with the same view, evidence may be given of lawsuits existing between the parties. The question is, says the Court, what excited the prisoner to the commission of the act ? Every thing which operated upon his mind may be proved. Every circumstance which goes to show the feelings of the parties towards each other may be proven. The temper, which at one time might not be excited, might, under the excitement of other circumstances, be more easily roused, and therefore it might be received by the jury to show the state of mind of the parties. See also, Quesenberry vs. The State, 8 Stew. & Por. 315. In Reynolds vs. The State of Ga., 1 Kelly, 230, threats on the part of deceased to do some bodily injury to the defendant, unconnected with any overt act, are admissible; perhaps, for its admissibility, it may be necessary to show the defendant had knowledge of such threat, but facts connected with the transaction, or occurring at or about the time of the rencontre, are competent without proof of notice to the defendant, and ought to be received, leaving to the jury to give it such consideration as they may think it entitled to as part of the transaction they are empanneled to investigate. Naked threats, unaccompanied with personal violence, are admissible to show the reasonableness of the defendant’s fears, provided a knowledge of the threats were brought home to him. Powell vs. State, 19 Al.- 577. Also, Sowell vs. State, cited by the Court, Lumpkin, J., delivering the opinion, in 5 Ga. Eep. 136. As a general rule, it is expedient to receive all the evidence which goes to show the state of feeling of the parties towards each other at the time of the act committed; and for the same purpose testimony may be given of lawsuits existing between the parties. Monroe vs. The State, 5 Ga. Eep. 85, and cases there cited. Where a witness was introduced to swear, that between sundown and dark, preceding the night on which deceased was killed, he saw deceased throwing stones and chunks from the road over into the yard of his lot; that he was alone, with his coat off, and his shirt sleeves rolled up, and that he was cursing, and appeared in an angry mood: Held this testimony should have been received, in order to ascertain the temper and conduct of the parties. So, also, proof that the wife of the accused had been driven away from the premises the same afternoon,' with threats of violence to her husband. This Court, says Lump-kin, J., stands pledged by its past history for the abolition, to the extent of its power, of all exclusionary rules which shut out facts from the jury, which may serve, directly or remotely, to reflect light upon the transaction upon which they are called to pass, Eor one case gained by improper proof, ninety-nine have been lost or improperly found, on account of the parties being precluded by artificial rules, from submitting all the facts to the tribunals to which is committed the decision of the cause. Verdicts, notwithstanding their etymological meaning, (yere dice), will never speak the truth, because juries can never measure the power and influence of motives upon the actions of men, until the door is thrown open to all facts calculated to assist, in the slightest manner, in arriving at a correct conclusion in the pending controversy. Haynes vs. The State, 17 Ga. Rep. 464. So long, therefore, as the evidence offered is legal and relevant, it must be admitted. As to its weight, that is a matter with which the Court has nothing to do. It would be impossible, before all the testimony was in, for the Judge to form any conception as to the definite bearing and effect it would have; and then to do so would be arrogating to him'self the province of the jury. Graham & Waterman on New Trials, 665. Where evidence is legally competent, the party has a right to have it left to the jury, although, from the whole evidence, as reported by the judge, the Court consider the testimony insufficient to enable the plaintiff to recover.. Wilkinson vs. Scott, 17 Mass. Rep., 249. Said Parker, Ch. J., in this case: “ If we were called upon to say whether the evidence, as reported by the Judge, was sufficient to enable the plaintiff to recover, we should probably not hesitate to decide in the negative. But as the evidence was legally competent, it was for the jury to pass upon it.” See, also, Wharton’s Crim. Law, 639.
    On 3d ground. 2 Graham & Waterman on New Trials, 363. The verdict is to be the result of the deliberations of the jury upon all the evidence in the case. The Court has no right to anticipate the verdict, by an expression of opinion calculated so to influence the jury as to take from them independence of action. The jury naturally rely with great confidence, not only upon the integrity and fairness of the Judge, but also upon the correctness of his views. The latter, therefore, possesses the power, in a great measure, to withdraw them from a full, candid and deliberate investigation of the case, such as the law contemplates, and to substitute his own for their conclusion. It should never be forgotten that, while the Judge is the expounder of the law, the jury are triers of fact; that this is - their peculiar and exclusive province; and that it is no less their duty than their right and privilege to decide all questions proper for their consideration. They are called away from their business to devote hours, and, it may be, days, and even weeks, to the determination of an issue in which they have no immediate concern, because they are supposed most capable and reliable for the discharge of the trust committed to them. If an individual on the bench were permitted to usurp their office, and arrogate to himself what was exclusively designed for them, the object and intention of the constitution, in perpetuating the blessings of jury trial, would be defeated, and a highly prized popular franchise be fritted away and destroyed. 10 Iredell, 153, The State vs. Shule. This was a trial in N. C. Superior Court, on an indictment for an affray. The jury remaining out a considerable time, at the request of the prosecuting attorney they were sent for by the Court. The Court then charged them, that although Jones, (the other defendant,) had first commenced a battery upon Shule, yet, if the jury believed the evidence, the defendant Shule was also guilty. Thereupon one of the jurors remarked that they had agreed to convict Jones, but were about to acquit Shule. The Court then charged the jury again, and told them that they could retire, if they thought proper to do so. The jury consulted together a few minutes in the Court room. The prosecuting attorney directed the clerk of the Court to enter a verdict of guilty as to both defendants. When the clerk had entered the verdict, the jury were asked to attend to it, as it was about to be read by the clerk. The clerk then read the verdict in the hearing of the jury. The jury, upon being requested if any of them disagreed to the verdict, to make it known by a nod, seemed to express their unanimous assent; and no juror expressed his dissent. Prom the judgment upon this verdict, the defendants appealed. The Supreme Court said: “We think there was error in the mode of conducting the trial. There must be a venire de novo. There was a departure from the established mode of proceeding, and the wisest policy is, to check innovation at once; particularly as, in this case, it concerns the trial by jury, which the bill of rights declares ought to remain sacred and inviolable. The error complained of, is, that before the jury had announced their verdict, and, in fact, after they had intimated an intention to acquit the defendant Shule, the Court allowed the clerk to be directed to enter a verdict, finding him guilty; and after the verdict was so entered, allowed the jury to be asked if any of them disagreed to the verdict which had been recorded by the clerk. No juror expressed his dissent; but by a nod, which appeared to be made by each juror, expressed their unanimous assent. The innovation is, that, instead of permitting the jury to give their verdict, the Court allows a verdict to be entered for them, such as, it is to be presumed, the Court thinks they ought to render, and then they are asked if any of them disagree to it; thus making a verdict for them, unless they are bold enough to stand out against a plain intimation of the opinion of the Court. The rules of evidence, do not allow a leading question to be put to a witness. If a party should be allowed to put a question to his witness, and before it is answered by the witness, to suggest an answer, and ask the witness if it is so; upon exception, this would be held to be error, and a venire de novo be ordered. The reason 'is, that a leading question suggests to the witness how the party wishes him to answer; tempts him to commit perjury, if he is corrupt; or, at all events, is calculated to take him by surprise, and sometimes get an answer from him which he would not otherwise have made. There are the same objections to leading juries as to leading witnesses; and, in fact, those apply with more force. The Judge is prohibited from intimating to the jury his opinion upon a question of fact. The attendant circumstances in this case, gave as clear an intimation of opinion as could be imagined.” See also Munro vs. State of Georgia, 5 Ga. Eep. 138 f,Aylwin vs. Ullman, 12 Mass. Eep. 22; Tufts vs. Seabury, 11 Pick. 140; N. Y. Ins. Co. vs. Walden, 12 Johns. Eep. 513; Utica Ins. Co. vs. Badger, 3 Wendell, 102. It is error for the Court, in its instructions to the jury, in a trial for murder, to assume that the name of the party murdered is stated correctly in the indictment, that being a question of fact for the jury. State vs. Dillihunty, 18 Miss. (3 Bennett,) 331. The cases in our State, of State vs. Bennett, 1 Tr. C. E. 692; Develen vs. Kilcrease, 2 McM. 428; and Kirlcwood vs. Gordon, 7 Eich. 478, holding that a Judge may comment on the evidence, and in complicated cases intimate to the jury his opinion, leaving the ultimate decision to them, are not applicable to this case. Here the Judge openly pronounced the guilt of the prisoner, and in terms instructed his conviction.
    On the 4th ground. The Court erred, in requiring the prisoner to prove the commencement and termination of the alleged delirium. The real question was, what was his mental condition at the time of the commission of the deed ? Could he distinguish between right and wrong ? Was he, or not, under all the circumstances, a sane man? Again, though there was no positive evidence that the prisoner was drugged, yet there was ample circumstantial proof of the same, from the price paid for the liquor, the place where it was obtained and drank, and the character of the effects produced by it, as testified by the witness; and the prisoner was, therefore, entitled to the charge of the Court on this point.
    Hayne, Attorney-General, contra.
    
      
      
         It is not deemed necessary to a proper understanding of the case, that the testimony should be reported.
    
   The opinion of the Court was delivered by

Johnston, J.

It is scarcely necessary to take particular notice of the fourth ground of appeal, there being sufficient grounds to order a new trial without touching it; but, were it necessary, we should feel little hesitation in sustaining the charge of the Judge.

The same remark applies to the third ground. But as the right of the judge to advise the jury on the facts, is occasionally drawn into question, it may not be improper to make a few brief observations upon it. This right has been too often sustained to remain the subject of the least doubt. It is entirely reasonable and proper, and its exercise is not unfrequently called for by duty and expediency.

. Where the Court without attempting to withdraw the decision of the facts from the jury (to whom it unquestionably belongs,) has offered them the aid of its greater experience and more practised judgment, there is no reasonable pretext for the complaint that it has invaded their province or trenched upon their functions. The Court, itself, not unfrequently feels under obligation to an amicus for advice on the points of law before it; and it is not perceived that a jury occupies a position of superior sanctity or infallibility; or why it should be considered improper or offensive to present to their minds, in a public manner, the suggestions of wisdom and experience; or why, as fninisters of justice, their qualifications should be impaired by additional light.

It is not difficult to discover that such a procedure may be disagreeable, and tend to the disappointment of interested parties : but to the cause of justice of which both judge and jury are tbe sworn ministers, it can, when judiciously exercised, scarcely fail to be satisfactory.

It would surely not diminish the qualifications of a jury, should there be found in its panel, those who had, by having previously occupied the position, become familiar with their duty, and experienced in its performance. How, then, can it fail to benefit them, when a virtuous and able magistrate, exhibits before their unpractised minds, those lights with which his daily occupation have rendered him familiar ?

It is his duty to sustain the weak, the unpopular and the ignorant; to uphold the justice of the cause. Can there be exhibited a grander spectacle than that of a public magistrate, firmly and uprightly engaged in the discharge of these high duties ?

In criminal causes, such as this, should he fail to offer on behalf of the prisoner, such suggestions as the occasion might bring to his mind, 'would it not be a deep offence against humanity and right ? And would it not be an equally plain offence and dereliction of duty, if when he saw on the other hand, the public interests, and the public justice committed to his care, about to be sacrificed, he should meanly shrink from their support ?

I pass on to the first and second grounds of appeal.

It appears from the report of the trial, that when Daniel Eogartie, a witness for the defence, was on the stand, Mr. Simons, the prisoner’s counsel, proposed “ to show by this and other testimoney, that the deceased was a turbulent and violent man, and carried arms about him, and that this was generally known,” which “ evidence as to deceased was ruled "out.”. This forms the first ground of appeal.

When Michael McFeeny was sworn for the prisoner, Mr. Simons said, “ I propose to show that on the day before this occurrence (the death of Saffron) the deceased and witnesses were employed together, and that this witness was with them ; hat the deceased then exhibited a quarrelsome and violent disposition, and attacked the witness; and that on this occasion,- the prisoner interposed' and separated them, and that the deceased had threatened the prisoner.” The question was argued and the testimony “finally ruled out.” This constitutes the second ground of appeal.

The circuit Judge says, “In reference to the first ground of appeal, I did exclude the evidence which was offered, in reference to the character of the deceased, upon the authority of the doctrine laid down in 3 Green. Ev. sec. 37, at the same time intimating the opinion, v that if it had been doubtful whether the killing was from a just apprehension of danger, and in self-preservation,’ I should have held it admissible upon the authority of Monroe's case, (5 Georgia Rep. 85.) I also excluded the proposal referred to in the second ground of appeal.”

The appeal from this ruling raises questions of no ordinary importance, though the principles governing them do not appear to be unusually difficult.

Lord Gamden, in the memorable debate on Fox’s bill, while contending for the right of juries to render a general verdict in cases of libel, illustrated his position by referring to cases of homicide. Speaking of intention, he argued: “ A man may kill another in his own defence, or under various circumstances, which render the killing no murder. How are these things to be explained? By the circumstances of the case. What is the ruling principle ? The intention of the party. Who decides on the intention of the party ? The judge ? no, tbe jury. What is the oath of the jury ? well and truly to try the issue joined, which is the plea of not guilty to the whole charge.”

This passage shows, in a striking manner, that the intention and not the mere formal act, is the essence of crime ; and that the necessity of embracing the fact of intention in a verdict of guilty or not guilty gives the solution of the whole issue to the jury.

As this great master of the law truly says, “ the ruling principle” is “the intention of the party” to be decided, not by the “judge” but by “the jury” from “the circumstances of the case.”

When the State proves the killing, without more, the law infers a criminal intent, and throws on the prisoner the necessity of explaining away this legal presumption: and how can he do it, (his intention depending on the circumstances,) unless he be allowed to show what tbe circumstances were ?

I have been accustomed to think that the circumstances that surround a man always serve to throw light not only upon his language (which is known law in another forum, with which I am more familiar than with this,) but also upon his acts. The words uttered, the language written, the acts done, speak for themselves, and are the only subject ofinterpretation; but they are read and interpreted in the light of the circumstances which prompted them, and to which they always tacitly refer. The same act done under different cir-' cumstances may have a very different meaning. If a man slay another in battle, he is a hero and a patriot. If, while repelling a criminal and dangerous assault on bis person or his house, it is a defensive and rightful act. If it is done under that degree of provocation which would work up the infirmities of a man of proper social feelings, and of peaceable disposition, to the hasty shedding of blood, it is manslaughter. The circumstances must determine the intention and the case.

I do not mean the mere circle of facts immediately surrounding the parties at the moment of the fatal act; but the facts more or less remote, according to the case, which may reasonably be supposed to have been in the minds, or contemplation of the parties at that time; the facts to which their conduct may be supposed to have tacitly referred the facts : which may be reasonably intended to have prompted the fatal act.

When the jury who are to decide on the intent, have these facts before them, and not till then, they have the means of intelligent and conscientious judgment.

The authorities quoted in argument, for the prisoner, give full support to his motion. I regret that, in the heavy business of this Court, neither my time nor my strength permits me, as I would desire, to bring out in this opinion such portions of these authorities as would, in my judgment, show the law to be as I have stated. I cannot, however, refrain from pointing particularly to the case of Monroe, plaintiff in error, vs. The State of Georgia, as a controlling authority on the points before us; a case argued and decided with ability, and in which nearly all the cases referred to were cited. Contenting myself with this reference, I proceed to the few other observations I deem it essential to mate.

It seems hardly necessary to observe, that evidence of the character and habits of the party slain is proper only so far as they can be supposed to have affected the intention of the slayer, in the fatal act. And, therefore, his general bad character is inadmissible. The evidence should be confined to a character and habits of violence, treachery, &c., such as might beget reasonable apprehensions of grievous bodily harm, and reduce the other party to the apparent necessity to slay in self-preservation.

Such an apprehension may be, also, created by particular preceding acts, reasonably connected in point of time, or occasion, with the fatal recontre; or by threats, as well as by the general habits or conduct of the deceased; and, may, therefore, be the proper subjects of evidence.

But whether the general character, or conduct, or particular acts of the description mentioned, be offered, it appears to be essential to their reception, that it should, some how, reasonably appear that the prisoner knew, or may be supposed to have known, such character or conduct; for, if he was ignorant of them, they could not possibly have modified his intention in the act of slaying.

And, of course, if the relevancy of the testimony does not appear from the prior evidence in the case, the party offering it must lay a foundation for its reception in the proof of facts making it relevant; and the Court must, necessarily, have the power to decide, subject to review, upon its relevancy.

We are all of opinion that the Circuit Court was in error, in rejecting the testimony proposed, which the circumstances showed to be proper; and, therefore, as it should have gone before the jury, however trivial its effect might have been (of which we are not the judges), we feel constrained to grant the motion for a new trial; and it is so ordered.

Motion for new trial granted.

O’Neall, C. J., and Wardlaw, J., concurred.

Motion granted. 
      
      
         16 May, 1792, 5 Camp. Lives of Chancellors, 342.
     
      
      
         5 Rich. Eq. 155.
     
      
      
         5 Geo. R. 85.
     