
    STATE v. BENJAMIN J. HARRISON.
    To submit a hypothesis to the jury, ia the absence of proof tending to establish it, is error.
    Because one of two men was killed by a gun-shot wound, and the other had marks of violence on his head, it does not follow, in the absence of proof as to who committed the act, that the latter was guilty of murder.
    In stating a view of a homicide case, as an alternative view for one supposed to be rejected because the testimony supporting it was conceded to be discredited, it is error so to state the alternative proposition as to leave the jury to bring into their consideration the discredited testimony.
    To instruct a jury, that “ if the prisoner went to a house, carrying a deadly weapon, with the purpose of provoking a fight if he found a certain person there, <and did so, he was guilty of murder, although the deceased made the first assault,” was Held to be error.
    This was ail indictment for MübdeR, tried before SauNdebs, J., at the last Fall Term of Northampton Superior Court.
    The murder was charged to have been committed on the body of one William Portis, and the evidence in the case, as set forth in the record, was as follows :
    “ Mary Hodges, witness for the State, testified that she was Well acquainted with the prisoner and the deceased; that she lived with her father, Meecham ITodges; that the prisoner came to her father’s the 16th of May, about 3 o’clock in the ■evening — was drinking — was drunk, and said he came there to stay, to which she objected; he had a gun — swore he would stay- — threatened to shoot her and take her child — he lay down on the bed near the fire-place — but one room in the house — Portis, the deceased, came there about sun set — she invited him in — said how do you do Mr-. Harrison; I am d — d pleased — how do you do ? Portis replied, “ sorter tolerable;” prisoner asked what he came for ; said he had come to deliver a message to Mr. Hodges from his son; he began to deliver this message; prisoner-said d — n you, you are drunk, and I’ll make yon drunker; and raised his gun, which was lying on the bed; pointed it at the deceased, who was- standing at the fire-place, who advanced one step and tried to Tcetch the gun, but it went off before he could close his grasp — shot in the head, and he fell and expired without speaking; she said the prisoner had killed him ; he said yes, and lie intended to kill him ; she was greatly alarmed; thought her life was in danger; struck the prisoner with a chair; knocked him from the bed, and fell on the floor; continued to bqat him until her father pulled her away; struck him with the chair a dozen blows; she then run over to Mr. Kemp’s, a half a mile off- — -told what had occurred; said the prisoner had married her half sister, and had seduced her — was the father of her child, a boy six years old; Portis had neither done nor said any thing to the prisoner except what she had stated.
    
      “ In her cross-examination, she stated the prisoner had given her son a small knife ; had also given one to her father, and offered her a bottle of cologne, which she refused ; said her father was setting at the table, at supper, when the deceased came; her little boy met him and handed him his knife, with a whetstone, and asked him to sharpen it; he took them and walked to the fire-place ; changed the knife from his right, to his left hand, when he attempted to ketch the gun ; when shot, the knife and stone fell on the floor, which her father picked up and gave to her boy, who had lost it.
    “ Was asked if she had not had criminal intercourse with the deceased. Said she had not, nor with the prisoner since the birth of her child ; prisoner had lived six miles off, and deceased half a mile, and was in the habit of coming to her father’s.
    “ Was asked if she had not stated to Goodwin Daniel, that the prisoner ought to be hung, and would be, if her oath could hang him ; said not; but she had said, the prisoner ought to be hung, and would be, if her oath would hang him, and she said so now; and Goodwin had said, at the same time, prisoner ought to be hung ; that she was greatly agitated in her examination before the magistrate, and hardly knew what she had said ; and the same case before the coroner ; had not seen Portis before on that day, and did not know whose gun it was that deceased had ; had not raised or offered to raise it; described tire position of the table, and where she was setting at the time of the shooting.
    “ Meeeham Hodges, testified that the prisoner came to his house on the evening of 16th of May — was drunk — had his gun — -threatened his daughter — lay on the bed ; he went after wood; met Portis, told him Harrison was at the house and advised him not to go; said he would not; gave hitn bag of meal, sent by his son ; returned, prisoner still on the bed, his gun by his side, him and his daughter at supper, lie setting with his back to the prisoner ; Portis came to the door, set his gun down on the outside of the house, and he came in— spoke to the prisoner, who answered, “ I am d — d pleased, how do you do.? replied, sorter tolerable ; what did you come for ? to which deceased 'said, to bring a message from his son! Harrison said, you are drunk, d — n yon, I’ll make yon drunker ; turned his head — saw Harrison shoot deceased in the head, who fell dead ; Portis standing with back to chimney; he saw no knife ; prisoner said he intended to kill his daughter; she then struck him with chair ; he believed she would have killed him — pulled her away. He then pushed Harrison out of the door ; him and Harrison had a scuffle for the gun ; he got it, he very bloody about the head ; he found the gun setting up against the house ; carried it in — was loaded ; claimed by Kemp.
    “ Cross-examined. Was questioned as to what he had said to Daniel; which he denied — thought prisoner ought to be hung.
    
      “ Mr. Kemp said, he had heard prisoner, Harrison, threaten to kill or whip first Portis caught at old Hodges.
    “ Elizabeth Kemp lived with her brother, half a mile from Hodges ; Portis lived at her brother’s — had been to Weldon the day of the affair; Portis left about sun-down with gun, said going turkey-hunting ; Mary Hodges came there about dark — seemed agitated; told what had happened — witness too much frightened to recollect It.
    
      “ II. Wheeler testified, that Harrison came to the store about two o’clock the day of the murder — had gun — bought two knives and bottle cologne ; was drinky — left in a buggy, and did not say where going — boy returned same evening with buggy — saw no gun.” The State closed.
    “ WITNESSES FOR THE DEFENSE.”
    “ Dr. Wm. Oarstarphin, testified to having seen the prisoner on the night of the occurrence ; found very bloody and much braised — a cut on the head, also a cut on the ear— thought it had been done with a sharp instrument — might have been done with a chair, but he thought not.”
    “ Other witnesses were examined as to the wounds and injuries of prisoner; one witness thought the ear seemed to have been cut bj passing something through it.
    “The magistrate and coroner were examined as to what was said by the two Hodges’ — that neither of them had said any thing as to the knife or gun, and denied what had been said by them as to their swearing to take the life of the prisoner.
    “ It is not deemed necessary to state this testimony, as it all went to impeach the testimony of Mary Hodges and her father.
    “ The Court, after repeating the testimony of Mary Hodges and Meecham Hodges, told the jury, if the testimony of these two witnesses was to be believed, then it was most clearly a case of murder; and whether they were to be believed or not, it was their province to determine.
    “ The prisoner’s counsel say the testimony is not to be relied on ; that their statement is unreasonable and contradictory, and too improbable to be credited ; that the condition in which the prisoner was found, proves most clearly that the prisoner was set on by the deceased; that he was forced to kill to save his own life ; or at most, it was a case of mutual combat, and as such, only a case of manslaughter.
    “The killing being admitted, and that with a deadly weapon, the law pronounced it a case of murder, and threw upon the'prisoner the necessity of making good his defense by direct testimony, or by satisfying the jury that the testimony offered by the State, by a fair and legitimate construction, led them to that conclusion.”
    
      “ The counsel for the prisoner say, that whilst they have offered no witnesses, as to the two State’s witnesses, who alone were present at the occurrence, they have a right to impeach their statements, by showing it was not to be credited.
    
      “ 1st. Because the story is in itself unreasonable; and from the manner of telling it.
    “ 2ndly. By their contradictions.
    “ 3idly. The witnesses, by their feelings, had proved themselves to be unworthy of credit.
    “ This was certainly so, and whether they had succeeded or not, was for the jury to decide ; for unless the testimony offered by the State, carries to the minds of the j ury full and entire conviction of its truth, so far as to establish the guilt of the prisoner, to their entire satisfaction, it was their duty to acquit. The jury would decide as to the reasonable or unreasonableness of the story — the manner of the witnesses, their feelings and as to the alleged contradictions ; it was also their duty to decide whether they had been corruptly false in any thing they had said or omitted to say. The prisoner’s counsel say, as Mary ITodges had said nothing as to the deceased having had a knife, in her examination either before the magistrate or coroner, or in her examination in chief, it showed, most clearly, that she had been guilty of such corrupt omission, as to call upon the jury to reject her testimony altogether, on the maxim falsum in uno falsum in omnibus.
    
    “ In answer to this, the Court said, before the jury could reject the testimony on this ground, they should be satisfied the witnesses had been corruptly false on a matter material to tliepnatter under investigation — the jury were to judge of what the witness had said — that she had not been asked any thing about a knife in her previous examination; and when interrogated by the counsel in her cross-examination, she had promptly answered the question.
    “Should the jury come to the conclusion that these witnesses had not given a true statement of the transaction, but should think, from the cut of the ear, the bruises, and other injuries on the person of the prisoner, there had been a conflict between the parties, then it would be their duty to find only a verdict for manslaughter, although the prisoner had used a deadly weapon.
    “To find it a case of justifiable homicide, they should be satisfied that the prisoner acted in self-defense, or from a well-grounded apprehension that his own life, or person, was in danger.
    “The prisoner’s counsel objected to that part of Mary Hodges’ evidence, in which she had been permitted to state the threats and conduct of the prisoner towards herself and her child, on his arrival at the house, and before the deceased came to the house of her father. The objection was overruled by the Court, and the evidence admitted.
    “ When the prisoner had concluded his evidence, the Attorney General recalled John Kemp and asked him if he was acquainted with the general character of Mary Hodges, and thereupon, his Honor inquired if it was necessary to ask that question as her character had not been assailed.
    “ His Honor charged the jury, that if the prisoner went to the house of Meecham Hodges, having a deadly weapon, for the purpose of taking the life of the deceased, if he should find him there, or of provoking him into a fight, and did so, then it would be a case of murder, although they should believe the deceased made the first assault.”
    Defendant’s counsel excepted to this latter part of the charge. Yerdict, guilty of murder. Judgment and appeal.
    
      Attorney General, for the State.
    Ba/r'nes, for the defendant.
   Pearson, J.

If his Honor had stopped after giving the general instruction in the first sentence of the charge, that if the testimony of Mary and Meecham Hodges was believed, it was a case of murder, the prisoner would have had no ground for complaint.

Or if lie had stopped after entering into a discussion of all that had been saiápro and con, in respect to their credibility, and meeting the objections that had been made to the reception of certain testimony, the prisoner would have had no ground for complaint.

But, in the conclusion of the charge, ho lays down this proposition as a distinct and independent view of the case, “ If the prisoner -went to the house of Meecham Hodges, having a deadly weapon, for the purpose of taking the life of the deceased, if he should find him there, or of provoking him into a fight, and did so, then it would be a case of murder, although they should believe the deceased made the first assault.”

In this, there is error, both in a particular, and general, aspect.

“ For the purpose of taking the life of the deceased, if he should find him there,” “ although they should believe the deceased made the first assault.”

This is an unquestionable proposition of law; but the question is, where is the evidence to present it? It assumes that the testimony of Mary and Meecham Iiodges is unreliable, for, if that were believed, the case had been already disposed of, and the supposition that the deceased made the first assault, or any assault at all, is inconsistent with it. Putting that out of the case, the only testimony in respect to it is that of Kemp, who swore, “had heard Harrison threaten to kill or whip first Portis caught at old Hodges’.” When this was said, is not stated. It might have been two or three years before, and from the incidental and loose manner in which it is set out in the case, we cannot suppose that it was made the sole ground upon which a proposition directly affecting the life of the prisoner, was to depend.

Or for the purpose of provoking him into a fight, and did so, then it would bo a case of murder, although they should believe the deceased made the first assault.”

Besides being obnoxious to the same objection as the first proposition, this is not true as a matter of law. A man having a deadly w-eapon, goes to the house of another for the purpose of provoking a third person, if he should find him there, into a fight, and does so. Does what ? Provokes him into a fight. This makes the party guilty of murder in the absence of any reliable proof that he killed him, or who killed him! For putting the testimony of the two Hodges’ out of the case, there is no evidence, save the fact that one man was killed by a gun-shot wound, and the other had marks of violence on his head.

This brings us to the general view, upon which we think the prisoner is entitled to have his case submitted to another jury. The proposition assumes that the jury might be unwilling to convict of murder upon the testimony of the two Hodges’, and suggests an alternative ground, upon which it would be a case of murder, although the testimony of the two Hodges’ was not, in the opinion of the jury, entitled to full credit. This was calculated to mislead, and the prisoner had a right to the instruction, that if the jury could not fully rely upon the testimony of these two witnesses, he ought not to be convicted of murder. After so elaborate a discussion, based upon the question of the credibility of these two witnesses, and the view presented by the case, upon the supposition that they were entitled to credit, the prisoner had a right to have the view presented by the case, that upon the supposition that they were not entitled to credit, examined with some particularity; and it was calculated to prejudice his case, to leave it to the jury in this broad-oast way, allowing them to take as much of the discredited testimony as was necessary to add on to the other circumstances, in order to make up a case of murder.

Pee OueiaM, Judgment reversed, and a venire de novo.  