
    THE STATE vs. ELLICK.
    If, on the trial o! im indictment, witnesses aro examined by the State, and ■ other witness:* aro-examined by the accused'to maintain his defence, and the Judge instructs the jmy that if they believe the witnesses on cither side, the «censed is guilty, this Court considers the ohavge only irt its application to the evidence offered by the accused, and assumes.erery-thing to be proved on bis part which a jury would he at liberty to infer from that evidonec.
    If two men fight on a snddr j quarrel, with deadly weapons, arid one strikes the other a mortal blow before the person so stricken is prepared to use bis weapon, the killing is murder; and ss it is if any unfair advantage he taken ; and if one uecs a stick and the other a knife or a pistol, they do not fight/«My and on equal terms, and, therefore, the party killing is guilty of murder.
    The cases of Gaither vs. iferihee, 1 Winston, 816, and State hi. Norton, Id., 806, cited and approved.
    This was an indictment against Ellick, a slave, for the murder of another slave, Cornelius, tried before Frewch, J., at Fall Term of Granville Superior Court, 1864.
    
      . Micajah, a slave, a witne** on fclie part of the State, swore that one night in the last summer, he had a quarrel with the prisoner, about the prisoner’s, having been attacked by a dog, a week.before. He*and the prisoner fought — he threw the prisoner down, and seeing the prisoner feeling for his knife, he left him — shortly afterward# ■he saw the prisoner seated on the door sill with the deceased ; he heard some words pass • between the two,_ but did not hear what they were. He saw the prisoner get up, and immediately afterwards the deceased arose,; and as he rose, prisoner made a thrust at him with both hands, and witness .saw the blow strike on the left side, of •deceased, who, immediately after receiving the blow, reached his hand inside the door and took a stick and knocked prisoner down. The déseased died of the wound. The stick which the deceased -used was admitted by the State to be a deadly weapon. Other witnesses for the State swore to the same general effect as Micajah.
    Witnesses were examined on the part of the prisoner, who testified to the facts stated in the opinion of the Court.
    The counsel for the prisoner requested the Court to charge the jury, that if they had a rational doubt from the evidence, whether the 'killing was done with malice, that the prisoner was entitled to the benefit of that doubt, and they should find the prisoner guilty of manslaughter only. The Court refused to give the instruction. The counsel for the prisoner further requested the Court to charge the jury, that if the fatal blow was given by the prisoner, after he was stricken with the stick by the deceased, that it was manslaughter, only. The Court declined to give the instruction, because there was no evidence to Sustain it. The Court instructed the jury, ■ that apon the eyidence of the witnesses on the part of the State, or of the prisoner, the killing was murder.
    The counsel for the prisoner excepted to the charge of the Judge.
    The jury found the prisoner guilty. And from judgment accordingly the prisoner, appealed. '
    Attorney General for the State.,
    Eaton for the prisoner
    In substance and effect the Judge instructed the jury that according to the whole of the testimony and that of each witness, this was a case of murder, and that' there was no evidence, however slight, tending to prove a legal provocation. It is insisted, in behalf of the prisoner, that the charge is erroneous, and that it is in conflict with the act of T796, and the views of this Court in the case of the State vs. Allen, 3 Jones, 25T. In that case the Chief Justice, in delivering the opinion of the Court, uses these words : “A Judge is not at liberty-to express an opinion as to the sufficiency of the eyidence. When there is a defect, or entire absence of evidence, it is his duty so to instruct the jury ; but if there be any competent evidence, relevant and tending to prove the matter in issue, it is ‘ the true office and province of the jury to pass upon it; although the evidence may be so slight that any one will exclaim, ‘ certainly no jury will find the fact upon such, insufficient evidence,’ still .the Judge lias no right to put his opinion in the way of the free action of the jury, even should he deem it .necessary to do so, in order to prevent them from being misled by the arguments of counsel or their own. want of apprs-hension.”
    
      Before commenting oñ tbe evidence set forth in tbe bill of exceptions, I will make a remark or two on tbe law of murder and manslaughter in connection with this case. If a distinction of any practical importance is to be recognized between homicide committed with malice, and a killing where the fatal act is the result of a sudden transports passion which may be'regarded as an incident to human infirmity,’ if theye be any /substantial difference between a killing from the wickedness of the heart, anda killing under the influence of the' ordinary frailties of our nature, it must follow, upon principle,-that an assault with a deadly weapon will extenuate a homicide to manslaughter, even though the party slaying may use a deadly weapon himself.
    What is an assault ? If A advances in a threatening attitude towards B to strike him, and is stopped just before he is near enough for his blow to take effect, it is an assault. Stephen' vs. Myers, English Common Law Reports, vol. 19, page 414. This case is cited as authority by enlightened elementary writers. See Arch. Criin. Pleading, 417 ; Greenleaf on Evidence, 3 vol., 57. It is-also referred to with respect and approbation by Judge Gaston in the case of the State vs. Davis, 1 Ire., 135. If the law is truly stated in .the case of Stephen vs. Myers it must follow, upon prineiple, that if A reaches after a stick and turns round to strike B with it, who is already within striking distance, it is an assault, .though B may strike him before he can accomplish his purpose.
    There is evidence in the statement of the witness, Harriet, tending to show that the deceased committed an assault; with a deadly weapon, upon the prisoner immediately before the mortal wound ivas given. She says, “the prisoner sat on the door sill by tire deceased. Witness beard some words pass between them, but does not resol-loet what they were. The prisoner got up .first. Cornelius rose up and reached his harfd'inside the door and got his stick. As he was turning round prisoner'struck him. on the left side. Witness heard the rip.” The prisoner, to use the language of the Court in the ease of the-State vs. Allen, has a right to insist-that the testimony should-he taken in the point of view most favorable to him ; and thatlfim any aspect of the evidence, ic is consistent with his being guilty of manslaughter only, there whs error in the manner in which the caso was put to'tlm,jury. In reference to the evidence of Harriet, if she- had been .the •nly witness, the proper charge would have been that if the prisoner had reasonable ground to believe that the' deceased reached after the stick and turned round to .strike him with it, it was manslaughter. .
    Such an instruction would have been proper upon the whole of the evidence together-. That the deceased -reaehed his hand inside of tli'o-door for his stick (admitted to be a deadly weapon) is proved by Micajah, George and' Harriet. T-hat it was his purpose to strike the prisoner, with it', is proved by Micajah and George, both of whom «ay, that he knocked him down three times with the stick. Jack also proves that-the deceased struck the prisoner with it. . Micajali and George state that the stick was reached for after the wound was inflicted on tiie deceased, but .Harriet’s evidence, if believed, shows that it was before. Whether the reaching for the stick was before or after the wound was inflicted, was a question of fact and not a question of law ; a question for the jury, and not one for the Court, A jury ¡hay believe a witness in part, and disbelieve other parts of his testimony, as founded in mistake or porjury. . They may, and often do,' believe ene witness as to a part, of a transaction, and reject bis statement, and adopt i-ixai of another witness as to other j-s.ris of th< tranruoít-m. Hn«noao that íhoy should believe Harriet in, to the tNi” vie ;i ? \ slick ; resumed after. 'Suppose they should. then reject the improbable statement of George’ «s io tóiu conversation which preceded any acts oí vickuiee on either side. They might well do so. for lio say’s. he heard prisoner say to deceased you hare all laid up f'e w-h’sp’we about that dog,” to whom the deceased !'opli3sfí<whomdoy...u raran by you ah?”' Prisoner replied, 'u i mean yep and nobody eke, and 1 will fix you for it now.' Suppose thee, that they should beliteye Micaja'la, (ieorge^and Jack as to the purpose for which the stick was obtained ano amxi, wo Slum hare this case : A reaches after a deadly weapon in gire’t), who is very near' him, a violent blow. B anticipates him, and stabs bim with a dirk in'the loft sido, whereupon-A, not deterred by the wound, knocks 4own three time:' with a bludgeon. Here would certainly be a case hi which the party slaying cannot be guilty of anything more than manslaughter. The question. 4s, not whether an intelligent jury would come to-the conclusions on the facts of the case which I have mentioned, or whether the' weight of the evidence would warrant them in so doing, hut whether they had. nota right, as triers of the facts, to come to such conclusions, or whether, in other words, there was any proof,' however slight, tending to establish these views of- the transaction. * • • ‘
    I have said that Harriet’s evidence, if believed, show® that the reaching after the stick was before the wound was given. It is true, that she does not, in the case made out by the Judge, say, in so many words, that it wa® before, hut it is clear that such was her meaning. She mea-tions that fact before the' other. In common conversation, and in almost every narrative, we mention facts in the order in which they occurred in point of time, 'and if we do not do SO' we show in what order we mean to state them as having occurred, because, without any explanation, the presumption is, that they occurred in the order in which they are stated. It would be in a case like this, either gross ignorance or palpable perjury in a witness, not to mention facts in the order of time in which the.y took place, and to make no explanation as to when they occurred, só that the real order of events may be accurately understood.
    In the ease of th.e State vs. Allen, the Chief Justice says that suppose the jury should disbelieve Magee and Hicks, and should believe Hob good. These were the witnesses present at the killing. It does not appear from the case that either was impeached, and the probabilities were strongly against Hobgood’s evidence containing the true view of the transaction. Suppose that in our case the jury should disbelieve all but Jack and Harriet. An intelligent jury, with a correct exposition of the law from the bench might, in that event, well acquit ef murder. The prisoner has a right to have the case decided in this Court, as if the J udge had pronounced it murder, according to the evidence of each witness.
    The charge of His Honor is still more open, to just exception in another particular of deep and vital importance. It invades (of course unintentionally) the right of the jury to determine upon the eredibility of the witnesses. He says that, a upon the evidence of the witnesses upon the part of the State or the prisoner, it was a case of murder,” without saying whether they should believe the witnesses' or not, or using any words of equivalent ini-port. The omission is a grave and serious one, and renders the instruction clearly and fatally erroneous. A jury being told by the 'Court that, upon the evidence on both sides, it was a case of murder, would consider their .task á mere matter of form; and would think that .they had nothing to do in the matter but merely to retire for a few moments, and then return with a verdict of guilty, in conformity with the'views of the Judge, whatever notions they might have as-to the facts of the cage-or’ the credibility of the witnesses. I deny the right of a Judge in North Carolina to charge in this manner, no matter what may be the evidence in the cause. ■
    In my opinion the Judge ought to have "instructed the jury, in substance, as follows ; If the jury shall believe, that the deceased reached alter his stick just before the-mortal wouud was inflicted, and the prisoner had reasonable ground to believe that he did so for the purpose <#" striking him with the stick, then it was. a case of manslaughter. He certainly ought to have told them that it was their exclusive right to pass on the credibility of the witnesses-
    I wi.il, with the indulgence of the Court, add a word or two »n the doctrine'of reasonable doubt. I am aware that this Court, sustained, as I admit, by high authority, and probably deeming itself bound by it, has held.that the doctrine applies merely to the fact of killing. If the question is not,, in the view of this Court, too far settled by authority, now to bo reviewed in the light of principle, I would, with great deference, suggest that the rule,- that, doubt .must be followed by acquittal, results from the hu-. mane maxim, that it is better that ten guilty persons shall escape than that one innocent man shall suffer, and* that the principle on which’ the rule is ■ grounded is as much, applicable to the grade of the homicide as it is ire the fact of the homicide.
   PBarsokj C. J.

We concur with Mr. Eaton in the position, that from the manner in which the ease was put to the jury, the motion for a venire de novo is to be considered on the testimony of the witnesses for the prisoner only ; and that the testimony of his principal witness, Harriet, is to be taken in the view most favorable to him. This follows from the fact, that the Judge made a general charge, and did not “ declare and explain the law arising on the evidence.'’ State vs. Summey at this term, Gaither vs. Feribee; 1 Winston, 315, State vs. Norton, Id., 305.

We have these.facts : The prisoner and one Micajah, in. a star-light night and in the shade of trees, had a fight. Micajah got the prisoner down, and then r§m off. The prisoner rose up, and had his hand to his side, as if he was holding something in his hand ; lie then sat down on the door sill, on which the deceased was sitting. Words passed between them — the prisoner got up — the deceased then rose, up and' reached his hanri inside the door and got a stick. As lie was turning rouud (after getting the stick,) the prisoner stabbed him in the left side witli a bowie knife, the blade of which was nine inches long.. The deceased then knocked him down with the stick i as he rose, he knocked him down.a second and a third time ; prisoner ran off, the deceased followed him a few steps, and fell, and died of the wound. The bowie knife and stick were admitted to he deadly weapons.

The learned counsel insisted that the offence was manslaughter, on two grounds. The aet of seizing the stick, with an intent instantly, to strike, was an assault with a deaply weapon, and amounted to legal provocation. 2. The prisoner had reasonable ground to believe that the deceased was about to do hiili great bodily harm, and struck to prevent it, which mitigates the offence to matt-slaughter.

Conceding these principles of law, the Court is of opinion that neither applies to this case, and that the offence is murder. There is some confusion in respect to the application of these principles of the law of homicide, grow-' ing out of obiter dicta and certain decisions to be met witk in the books. It is important that all confusion should he cleared away, especially in times like Jhcse ; for one of the ill effects of war-is to scatter deadly weapons among the people, familiarize the public mind to scenes of blood, and make a resort to such weapons a thing of frequent* occurrence, unless it is prevented by the fear of the law. On this account, without attempting to review the cases, (which would be ah endless task) I will endeavor to give the reasons on which the-law is based; whereby the proper applications of’its principles will be made clear.

Manslaughter is of two kinds : 1st. When the killing is the heat of blood. 2d. When the killing ■ is by accident, or mistake, arising from negligence, or a want of due precaution. V

1. If A is about to strike B, who is unwilling to enter into a fight, and shows it by words or actions, or otherwise, as by going back,, or warns A not to strike, and A presses ón and strikes, or attempts- to «strike, and thereupon B kills with a deadly weapon, it is manslaughter ; for there is a legal provocation, and the law aseribes the killing to heat ef blood,” and not to malice.

2. If, on a sudden quarrel, tbe parties begin a fight by consent, without deadly weapons, and, after blows pass, one uses a deadly weapon and kills, it is manslaughter;" for, by the excitement of the, fight, the blood is heated, and the killing is done, not of malice,, but iu the “furor brevis,” which the law, out of indulgence to human frailty, allows to mitigate the offence,.although the party had himself committed a broach -of the peace by entering into the fight willingly.

3. If, on a sudden quarrel, the parties fight by consent, at the instant, with deadly weapons, and one is kiLed, ■it is but manslaughter, 'provided the parties fight on equal terms, and no undue advantage is taken; for the fairness of the. fight rebuts the implication of malice, and the law mitigates the'offence out of indulgence to the frailty of human nature.

Which of these tin m principles is applicable to orn-ease? When it is pro red .that one has killed intentionally, with a deadly weapon, the.burthen of showing justification, excuse or mitigation, is on him. It is admitted the prisoner killed intentionally, with a deadly weapon. He does not show, hy his words or actions, that he declined the fight, or gave hack, or warned the deceased not to strike. So the first principle docs not apply. The parties did not begin the fight without deadly weapons. So the second principle does not apply, ühe parties fought, by consent, with deadly weapons ; .ho the case falls under the third principle, and the question is narrowed to this: Does the principle in regard to a iair fight apply? or does the case fall'under the exception iu regard to a fight on unequal terms, and when find no advantage "ia taken ? This is too rdahi for discussion. The prisoner, having his weapon ready, took his adversary at a dread* vantage, and stabbed him iu the side while he was in the act of turning round to face hiy, and before he was “ on his defence.” This dastardly act excludes the idea that be entered into the fight in compliance with the common notions of honor, and shows that he i: sought the blood ” of the deceased. . ' .

The principle by which a killing in a fair fight, with deadly weapons, is mitigated, was adopted at a time when every .gentleman wore a sword ; and the custom was, oa. offence given, to draw and fight. Such fights, owing to the expertnoss of the combatant» in defence, wean not often fatal. Manners have since changed. No one in private life now wears a sword < and how far this may affect the principle is a serious question ; but it is cer/ain that a fair fight at the instant with deadly weapons, is now of rare occurrence. When one has a knife, and the other a stick or a pistol, they ara uuton equal terms ; and the purpose of each is-to take advantage and give a mortal blow, as soon as possible. Swob cases fall under .the exception ; the party killing is a murderer, and ' tijera is nothing to mitigate. • • % *

if, as contended hy Mr. Eaton, in a “ mutual combat” with deadly weapons, the offer to strike! amounts to a legal provocation, neither party would (¡ver be guilty of more than manslaughter ; for each could say, my ad-versar j was about to Strike with a deadly weapon !” So it would make no difference whether the fight was ■ declined or entered into willingly, or was fair, or unfair-— and the law would* encourage a hasty resort to deadly, weapons, and an unfair, use of them, by saying “ Yqm need not show that you declined the fight, 'vud attempted to avoid it; you need not show that yon t»bk no on lue advantage — use your weapon as soon as you can, and take all advantages ! for if your adversary is about to Btrike, it is a legal provocation, although you are also about to-strike, and whichever kills will only he guilty of •manslaughter.” This would only lead to horrid conse- . quences, añd completely upset and confound all the prin- ■ ciples which' have been -so carefully adopted to deter men from the use of deadly weajrons, and at the same time extend a reasonable indulgence to the frailty of human na-, dure. . . .

The learned eounsel did not insist with much carnest- . ness, that the case could be brought under -the second kind of manslaughter. Oné or two instances will show that the doctrino has no application. - If one handles a loaded' gun so'negligently that it goes off and kills, it will be ex- ' cusable homicide or manslaughter, according to the degree of negligence.

'2. An officer pushed abruptly and violently into a gentleman's chamber early in the morning, to-arresthim, not telling his business or.using words of arrest. The gentleman, not knowing thafc he was an officer, under the first impulse stabbed him with his sword. ■ It was ruled manslaughter at common law, for the prisoner, not knowing the officer’s business, might, from his behavior, reasonably-conclude that he was about to rob or murder him. Cook’s case, Cro. Car., 538.

3. Upon an outcry of thieves, in the night time, a per-, sen, who was concealed in a closet, but no thief, in the hurry and surprise the family was under, was stabbed in the dark. This was'holden tobe an, innocent mistake, and ruled ehance medly. Levet’s case cited in Cook'’s' case supra. Foster, at page 299, observe* ef this ease : Possibly,'it might have been better ruled manslaughter, due circumspection not having been used.” In all cases, •when the offence is mitigated because ..the party acted under a mistake, for which there was reasonable ground, if the danger had been real,.the act would have been justi'fiable. In our ease tlie danger was real — the deceased was about to strike :with a deadly weapon ; and, if this doctrine applies, the killing was justifiable, and the prisoner ought to have been acquitted ! ! Reducfio ad absur-dnm.

The second objection to. the charge is not tenable. From the view we have felt bound to take of the case, the Judge is considered <as having, in effect, instructed the jury that, putting the testimony of the witnesses on the part of the State out of the ease, as an intentional killing with a deadly weapon was- admitted, the testimony of the prisoners's witnesses did not mitigate the offence to manslaughter; and the prisoner has ño reason to complain, because the instruction assumes that wluit his own witnesses swore to was true.

The third objection is not tenable. The position “that the principle oh which the doctrine of reasonable doubt is grounded, is as much applicable to tlie grade of the homicide, as it is to the fact of the homicide,” is not true. The error consists in not attending to the distinction, that the fact of the homicide must be proved by ihe Slate; but if found or admitted, the onus of showing justification, excuse Or mitigation, is upon the prisoner. At page 290 Foster says: “ whoever would shelter himself.under the plea of provocation, must prove his case to the satisfaction of the jury; ’’the presumption of law is against him,’ till the presumption is repelled by contrary evidence.” At page 255 the matter is explained gt large.

The principle on which the doctriné of reasonable doubt as to tlie fact of the homicide is grounded, is, that in favor of life, the fact which ihe State is- required to establish, must he proved beyond a reasonable doubt. It certainly would .not be in favor of life, to apply this doctrine to matter of mitigation, which .the prisoner is required to establish. Hence, in regard to that, the rule is, the jury must be satisfied by'the • testimony that the matter-offered in mitigation ds true.

There is error. This must be certified, &e.  