
    
      The State v. Moses Smith.
    
    Where the prisoner shot at a person on horseback, and declared that he did so only with the intention to cause the horse to throw him, and the ball took effect on another person and produced his death, the Court held the crime to be murder.
    If the act of a person which produces the death of another, be attended with such circumstances as are the ordinary symptoms of a wicked, depraved and malignant spirit, the law, from these circumstances, will imply malice, without reference to what was passing in the person’s mind at the time he committed the act.
    
      Before Mr. Justice Wardlaw, at Marion, Fall Term, 1847.
    The prisoner was indicted for the murder of a slave, contrary to the form of the Act, &c.
    The case which appeared in evidence was substantially as follows:
    At Gilesborough there was a public celebration of the national festival on Monday, 5th July last. Just after nightfall, the night being clear but dark, S. H. Price, a constable, and James Carter, a free white of dark complexion, both on horseback and in lively humor, overtook, near S. M. Stephenson’s, two miles below Gilesborough, a large and noisy crowd of men and women on foot, of whom most had been drinking somewhat, and some were quite drunk. All went together, whooping, cursing, quarreling and laughing, until they reached the end of a lane, a quarter of a mile below Stephenson’s, where a cart path leaving the main road turns around the corner of a fence on the left, and on the right the fence of the opposite field continues to run along the main road. Here, amidst tumult greater than before, Price alighted to keep the peace, and Carter on a white horse rode first down the road, then back some distance past the crowd, and then again down to them. He stopped a short time; then said, as one witness heard, “ Come, Price, let us go home: there’s nothing here but a parcel of d-d old whores and trash as another witness heard, he said, “Come, Price, we have lain here many a night with a drunken crowd: so mount, and let’s go to which this latter witness said that the prisoner replied, “You have, ha?” Carter dashed off. When his horse had made a jump or two, the prisoner, who was standing on the edge of the road to the left, a few feet from Price, fired a pistol, apparently, as the witnesses thought, at Carter. Carter rode on, and the noise continued, as before, for some minutes. Then a plaintive voice was heard, saying that somebody was shot: and it appeared that two little negro boys, Monday and his brother, belonging to Mrs. Baker, who lived on the main road three-quarters of a mile below Stephenson’s, had been sent to Stephenson’s, and meeting the noisy crowd, had turned aside and sat on the fence upon the right of the road, unseen by any of the crowd. The ball from the pistol had passed through Monday’s brain, and he had fallen inside of the fence without a cry, and his brother had run off and come back to look for him before any alarm was given. After the alarm, the prisoner walked hastily along the path around the corner on the left, but was pursued by Price and brought back with the pistol cocked in his hand, of which the second barrel, by some awkward handling, went off in the hands of a bystander soon afterwards. Carter rode back: Mr. Stephenson, Mrs. Baker and others arrived with lights, and various conduct and expressions of the prisoner were noticed, which were brought into the evidence. He seemed much concerned to know the boy’s condition-shuddered when told that he was dying-^replied humbly and with much seeming penitence to Mrs. Baker, who asked him why he had killed her poor little negro, that he did not know the negro was there, and would not have hurt him for the world if he had known it. Towards Carter he seemed sometimes excited, although it was manifest that there was no previous quarrel between them. As Stephenson said, he seemed inconsistent in his various expressions,' and seemed to affect much more anger than he felt, for the purpose of excusing or of banishing from his thoughts the deed he had done. Carter talked of manhood: the prisoner said that if his pistol had been loaded with forty bullets, he would have shot them through Cartel-' — that he wished it had been Carter and not the negro: that he would rather be hung than “take the abuse of that d-d mulatto,” meaning Carter. Again, being asked, when he said he did not mean to kill the negro, “ Well, who did you mean to kill?” he hesitated and said, “ Really, I did not intend to kill any body: I shot at that d-d mulatto, but did not intend to kill him.” Again, he said, “ I shot with this intention, to make Carter’s horse cut a caper and throw him down; and I thought I had elevated the pistol high enough to be out of danger.” Again, “I designed a frolic, to scare Carter or his horse, and thought I had raised the pistol so as not to hit any body.”
    It appeared, from careful examination, that a ball fired from a pistol held where the pistol was when the prisoner shot, in such direction as to hit a boy on the fence where Monday sat, would not pass higher than the shoulders of a man on horseback sitting where Carter was when the pistol was fired.
    The counsel for the- prisoner contended that the unfortunate death of the negro was the result of misadventure, in harmless sport. The questions mainly argued were, whether the pistol was shot at Carter, or raised, or supposed to be raised, so as to miss him: and whether there was an intention to kill, or only to scare without hurt.
    The PresidiNG Judge said: Amongst other instructions, I gave to the jury those which are complained of in the grounds of appeal, saying, in addition to the cases put of murder and manslaughter, that where death ensued from a dangerous weapon used in a crowd, to constitute a case of excusable homicide by misadventure, it must appear that there was no intention of bodily harm to any one, and that due care to'prevent all such harm was used.
    I thought that if the offence was neither murder nor excusable homicide, but was mitigated to what, at common law, would have been involuntary manslaughter, the verdict should be “ manslaughter,” and not killing in sudden heat and passion under the second section of the Act of 1821, which I considered in no wise applicable to the case.
    The prisoner was found guilty of murder, and appealed, on the grounds annexed.
    1. That his Honor, the presiding Judge, misdirected the jury in his charge, by stating the law to be “ that if the prisoner shot at Carter, designing some serious injury, as the falling from his horse, it is murder.”
    2. That his Honor charged the jury that “ if the prisoner shot at Carter without intending to kill or hurt him, it is manslaughter.”
    3. That his Honor charged the jury that “they might find the prisoner guilty of murder or manslaughter, or not guilty.”
    4. That the verdict was contrary to law and evidence.
    Miller, for the motion.
    McIver, Solicitor, contra.
    
   Evans, J.

delivered the opinion of the Court.

The jury having found the prisoner guilty of murder, there is no necessity to enquire whether he could have been convicted of manslaughter on this indictment. The first ground is, therefore, the only one necessary to be considered. The proposition presented by that ground is whether, supposing the prisoner “ shot at Carter, designing to do him some serious injury, as the falling from his horse,” he is guilty of the crime of murder. It is not denied that this question is the same as if he had killed Carter instead of the negro, for if one design to kill A. but by accident kills B. his crime is the same as if he had executed his intended purpose. It will be murder, or manslaughter, or self defence, according to the circumstances. It is very clear that the intent with which an act is done, very often gives character to the crime, but there is a legal conclusion drawn from the facts of the case, entirely independent of the intent of the party. Thus it is said in 2d Starkie Ev. 950, that “ where the defence is that the death was occasioned by accident, the nature of the act which produced the death, and the real motive and intention of the prisoner, are the proper subjects of evidence, but the conclusion as to the quality of the offence, as founded upon such facts, is a question of law.” The whole doctrine of constructive malice is founded on the same principle. If the act which produced the death be attended with such circumstances as are the ordinary symptoms of a wicked, depraved and malignant spirit, the law from these circumstances will imply malice, without reference to what was passing in the prisoner’s mind at the time he committed the act. If one were to fire a loaded gun into a crowd, or throw a piece of heavy timber from the top of a house into a street filled with people, the law would infer malice from the wickedness of the act: so also the law will imply that the prisoner intended the natural and probable consequences of his own act, as in the case of shooting a -gun into a crowd, the law will imply, from the wantonness I of the act, that he intended to kill some one, although .it ■ might have been done in sport. If the prisoner’s object had ' been nothing more than to make Carter’s horse throw him, < and he had used such means only as were appropriate to that end, then there would be some reason for applying to his case the distinction that where the intention was to commit only a trespass or a misdemeanor, an accidental killing would be only manslaughter. But in this case the act done indicated an intention to kill — -it was calculated to produce that effect, and no other — -death was the probable consequence, and did result from it, and I am of opinion there was no error in the charge of the Circuit Judge, that if the prisoner shot at Carter the crime was murder, although the i prisoner may have designed only to do Carter “some serious injury, as the falling from his horse.” The motion is there-1 fore dismissed.

Richardson, J. O’Neall, J. Wardlaw, J. Frost, J. and Withers, J. concurred.

Motion dismissed.  