
    THE STATE vs. JOHN MEDLIN.
    If several armed mrii to a d willing In use in the n!ghl time, for tie purpose of seissir-g the body of the _ ottntr. without ¡.‘.vviVii authority, and one ot them he killed by the owner, to prevent tl," execution of th"ir purp mo, such ki'’ii.<í :s rol nun-Jer. »
    The Suite vs. Jarran, 1 Ind., 84, riti-d : nd u..¡i.
    This was an indictment against the prisoner for the murder of one Hosea Little, tried before Heath, J,, at ' Fall Term of Mecklenburg Superior Court, 1864. On the trial --■ Ringstaff testiAed, that before, and at,. the time of the homicide, he was a lieutenant in the army of the Confederate States •; and in obedience to a written order directed,to him, purporting to be from.General Gf. W. Smith, commander of the department of Henrico, he, in the fall of 1862, came to the. counties of Union and Mecklenburg in this State for the purpose of arresting deserters and persons absent from their commands frith-out leave, who might be found in these counties — -that he has been a prisoner in the hands of the enemy for nine months, and the order was lost or destroyed while he was a prisoner. The counsel for the prisoner objected to tha witness’ speaking of the order, but the objection was overruled by the Court, The witness said, that in execution of the order, in September or October, 1862, he summoned the deceased, who was not a soldier, and five other persons, to go with him to the dwelling house of the prisoner, about 10 or 11 o’clock at night; and he and the men with him disposed themselves so as to surround the house. He and another man went into the porch, where he heard knocking at the door on the opposite side of the house.' He then put his eye to a crack in the side of the house, and before he had time to see anything,' some one in the house said, “ God damn you,” and fired a gun, the hall from which cut his whiskers and knocked splinters in his face. He'then said to the deceased, who was standing by, “ open the door, and give me a. chance.” He does not know what else he said ; thinks he might have said, “ I will shoot the damned rascal who shot at me.” He had a rifle in his hand with a hair trigger, which went off accidentally at this time. The door was opened afterwards, he did not know, by whom,"or how ; he'thinks it was opened from the outside ; it was not broken down. He then heard the sound of men’s feet running on the other side of the house, and some one say “ here they go he ran around and found his men running off after some one. He heard voices in the house in, a low tone, and called to his men to come back, and th* deceased and another started back : when they had got within about ton panes, of the house, a door opened on the side which they were advancing on ; three men stepped from the house two guns were fired in qpick succession by them, lie thinks from a- double-barrel gun ; the deceased fell, and the man advancing with him was also hit: the three men went off and he fired aj; them as they ran. One Austin'swore that he was one of the men summoned by Lieut. Ringstaff ;• when they first went ta the house of the prisoner, one of the men named Short, went into the porch on.the opposite side tó where Lieut. Ringstaff was, and knocked at the door ; a-female yoiee witlfin asked, iC who’s there,” to which Short answered, “■it. doesn’t matter ; 1 have come here with the proper authority, and intend to come-in ; ” to which the female replied. there is nothing here that belongs to you, and I will not open the door.” Short continued to knock and said; “ if you don’t open the doer," I will break it open.” At this time witness looked into the house through a crack, and. by a light in the fire-place saw the prisoner advancing-toward the fire place, with a gun . in his-hand, which he fired at Ringstaff.
    There was also evidence tending to show that the prisoner was a deserter from tlie army of the Confederate States, and that he fired the gun which killed the deceased.
    The prisoner’s counsel contended,
    1st. The prisoner did not do the aet of shooting,
    ind. If he did it was excusable, as it was done in self-defence: — defence of the prisoner’s dwelling house — in de-fence of bis person and family, and in prevention of a threatened felony.
    The Court charged the jury that if these men handed together as deserters, with a common understanding and determination to stand together, and resist all person* who might lawfully come to arrest them, and.if the prisoner killed, in consequence of this determination, it would be murder.
    2nd. If the prisoner knew he was a deserter, and sought as such by persons having proper authority to arrest him, and killed to prevent • such arrest, it would be murder.'
    Srd. If the prisoner believed, and had reason to believe, that a mere trespass only was intended, and killed to prevent such trespass, it would be murder.
    4th, If the prisoner killed for revenge for anything that had been done to -his house, and out. of malice, it •would be mufder.
    5th. That if the prisoner killed because his house was broken into in the night, he not knowing what was to follow, he would be guilty of nothing ; that if the prisoner believed, and had'cause to believe, that a . known-felony was about to be committed' on himself, his property or‘his family, the parties being in apparent,situation ■to commit said felony, and be killed to pre-'-nt it, then he would he guilty of nothing.
    The jury found the prisoner guilty, aad from judgment according to the verdict, the prisoner appealed.
    .Attorney General for the State.
    
      Wilson for the prisoner.
   Pearson, C. J.

In the State vs. Jarrett, 1 Ired, 84, this Court, taking the law to be that insolence on the part of a slave to a white man would justify a battery, but not an excessive one, awarded a venire de novo on the ground that the, instruction to the jury must be understood as having a reference to the testimony, and was in that sense erroneous ; and used the^e words: “ the language of His Honor, indeed, is, that if the prisoner used the provoking language testified by the witnesses, deceased had a’ right to whip lnm,” But by the word whip, he must necessarily be understood -as meaning t® whip in the manner testified by the witnesses ;” that is, with a knife and a fence rail.

In this case we think the prisoner -has a right to complain of the third instruction — i. e.} iCif the prisoner believed , and had reason to believe, that a mere trespass only was intended, and killed to prevent such trespass, it would be murder.” For, taking the law to be that a mere trespass to personal property does not mitigate where the killing is with a deadly weapon, but that a violent trespass to the person does mitigate,' this instruction must be understood as having reference to the kind of trespass spoken of by the witness ; and, in that sense, is erroneous. His Honor having, in the second instruction, presented the case to the jury on the footing that the deceased, and the party to which he belonged, -had proper authority to arrest the prisoner, in the instruction now under consideration, assumes that the deceased, and the party1 to which he belonged, were acting without proper authority, and that what they did, or intended to do, was a trespass, and must necessarily be understood as meaning the kind of trespass testified by the witnesses— that is, going to a man’s house in the night time, with a number of armed men, for the purpose of seizing his body,. Killing to prevent a trespass of this nature is certainly no more than manslaughter.

It occurred to ns that this error might be cured by the' fifth instruction. On consideration, we are satisfied that that instruction cannot have this elfect, because it-is qualified and restricted by the words, “he not knowing what' was to follow..” On tlfe supposition that he did know what was to follow — that is, that they intended to arrest and take him off as a deserter — the killing was mitigated, unless they had proper authority to do so ; which view is not presented by this instruction, and, consequently, it dees not cure the error of the third instruction. The first and second instructions assume that there was proper authority to arrest; the other instructions assume that there was not. This most important question is 'left undis-posed of, and to that omission the want of clearness in the case is to-be ascribed.

As is said in Gaither vs. Ferebee, 1 Winston 315; “ his Honor has left the case to the jury in - such a manner, as to make it impossible for this Court to know what his opinion was on a question of law arising on the facts of the case, and, of course, making it impossible to review his decision’ ’ — unless his instructions are considered a» mere abstract positions of law, without reference to what was testified to by the witnesses.

There is,error; and this decision, must be certified to the Superior Court, to the end that it may proceed according to law.  