
    Wesley (a Slave) v. The State.
    1. Criminal law: homicide: self-defence. — To make a homicide justifiable on the ground of self-defence, the danger must be either actual, present, and urgent; or the slayer must have reasonable ground to apprehend a design, on the part of the deceased, to commit a felony, or-to do him some great bodily harm, and that there is imminent danger of such design being accomplished; and hence the mere fear, apprehension, or belief, however sincerely entertained by one person, that another designs to take his life, will not justify the former in taking the life of the latter.
    2. Same: same : homicide op overseer by a slave. — A slave cannot show, in defence of a homicide by him of his overseer, the general management of the deceased on the plantation, with reference to violence and cruelty,, or specific acts of unmerciful cruelty committed by him on other slaves, while acting as such overseer.
    3. Same : instruction on weight op evidence : case in judgment. — The following charge is not liable to the objection that it instructs the jury in the weight of evidence, viz.: “if a party, through mere fear of his life, there being no real or apparent danger, kill another, it is not j ustifiable.’,
    4. Same : same : high court : when instructions on weight op evidence no ground for reversal.' — It is the peculiar province and exclusive right of the jury, to weigh the evidence and determine the facts of a case submitted to their consideration; and it is error for the court to instruct them upon the weight of evidence, or to assume in the charges given, that any material fact is proven: but this court will not reverse a judgment for a violation of this rule, if it appear that the fact assumed as proven by this court, was so clearly established by the evidence, that there could be no room for the jury to doubt on that subject.
    5. Same : evidence op the good character always admissible. — The good character of the accused, when satisfactorily established, ought always to be submitted to the jury with the other facts and circumstances of the ease.
    6. Same: same: weight op evidence op good character. — No precise and definite rule has been establisbed as to the weight which evidence of the good character of the accused is entitled to, in cases where the proof of guilt seems otherwise to be clearly established ; but it would be giving to such evidence too much weight, to instruct the jury, that it is sufficient to raise a reasonable doubt of tbe guilt of the accused when, excluding such proof, the evidence is sufficient to satisfy them of the truth of the charge alleged in the indictment.
    ERROR to the Circuit Court of Monroe county. Hon. Joel M. Acker, judge.
    Tbe prisoner (a slave) was indicted for tbe murder of William Gr. Ford. He pleaded not guilty, and the cause was submitted to a jury.
    On tbe trial, Mrs. Ford, the widow of the deceased, proved that her husband had been overseeing for Walker, the owner of the prisoner, for about one month previous to his death; that about sunrise, on Sunday morning the 1st of August, A. D. 1858, the deceased brought a negro man (who is admitted to be the prisoner) to the door of the smoke-house, and called for the key, and for a strap with which he usually tied negroes. These were brought to him. He then tied the prisoner and put him in the smoke-house, and locked the door, and then went into the dwelling-house. He did not appear angry or excited. In a very short time, not exceeding five minutes, witness wanted to get out some meat for breakfast, and asked deceased to go with her to the smoke-house, which he did. Whilst witness was whetting a knife at the corner of the smoke-house, and about six yards from the door, deceased opened the door, and as it opened witness heard a noise, and turning around she heard deceased fall over some cotton baskets that were near the door. The prisoner sprang so rapidly past her from the smoke-house that she could not identify him. He immediately ran off. Witness then saw deceased struggling, and ran to him, and called for assistance. She told some of the negroes to go for a doctor, but they said they did not know where the doctor lived. She then sent her son for the doctor. Deceased was then assisted into the dwelling-house. He had a very bad wound on the right side of his head, and died that day about one o’clock.
    It was in proof, that the prisoner, immediately after he inflicted the blow, ran to his owner’s house, about one-half mile distant, and not finding his owner at home, left, and soon afterwards, being hunted with dogs, he went again to the owner’s house. The wound inflicted was proven to be a fracture of the skull, and it appeared to be made by a stick, or some such instrument. There is some doubt as to whether the Avound was inflicted by a hexagonal piece of timber, of sufficient size, in the language of one of the witnesses, “to knock a bull down with,” or a paddle some three feet long, and of sufficient thickness to inflict death, or a brick-bat. The prisoner, soon after his arrest, stated he did not know with what instrument he struck the blow, but thought it was a piece of timber “ like a hoe-helve.”
    It was also in proof for the defence, by three slaves, that just immediately preceding the carrying of the prisoner to the smokehouse, as testified to by Mrs. Ford, the deceased had conceived that the prisoner had not executed properly a command to curry a mule, had become very much enraged, and had beaten with his fist, and kicked the prisoner with great violence, and on starting to the house with him, told the prisoner, “ that he would know how to curry a mule when he had done with him.”
    The prisoner’s character was proven to be that of an obedient and submissive slave. The general character of the deceased was also in evidence. He was proven to be cruel and violent in his treatment of slaves; and one -witness, who had employed him as overseer, and had discharged him for cruelty to his slaves, stated that his violence to slaves seemed to be a constitutional infirmity.
    The exception taken to the rejection of evidence offered by the prisoner is fully set out in the opinion, as well as the instructions given and refused, which were made the subject of discussion in this court.
    The prisoner was convicted, and upon his motion for a new trial being overruled, he excepted and sued out this writ of error.
    
      Sale and Phelan for the plaintiff in error.
    1. The prisoner offered to prove the “general management of Ford, with reference to violence and cruelty,” on the plantation where the killing occurred. He also offered to prove “ specific acts of unmerciful severity during the time he remained with Walker.” This was refused by the court. That a knowledge of the violent and dangerous character of the deceased may be adduced in behalf of a white man, by whom the death was occasioned, needs no authority. It is one of the most important features in determining the degree of apprehension which the prisoner may reasonably have entertained. Why should it not apply to a negro ? He is permitted to strike in defence of himself, at least in protection of his life or limb, when he has reasonable ground to apprehend the loss of either, from the cruelty and brutality of his overseer ; and, in deciding upon the’ reasonableness of his apprehension from the demonstrations of the deceased, why should he not be permitted, also, to show that such demonstrations on the part of such a man as the deceased, gave him just cause for his conduct? .There can be no reason for the assumed difference. On the contrary, it may be fairly urged that the principle applies to the case, of a slave with peculiar force. He is, it is true, required to submit to the actual or threatened violence of the white man, far beyond the point demanded between equals. That .very fact, in the assaults of the white man upon him, must inevitably awaken and keep in alarm his fears, as to what the unresisted violence of the white man will wreak upon him. As his hope lessens, his fear strengthens. He knows he must yield to great personal suffering, ere he do aught but supplicate. He feels that, at some point, he may strike to save life or limb ; and when submission has been yielded, and the suffering endured, and he sees the'“.end is not yet,” but that the violence increases, and threats and preparations for deadlier assaults are made and extended about him, a sense of danger seizes on his soul; his fear, till that time repressed by the hope of cessation, now fills his mind with dread imaginings of the evils to come; and he is then infinitely less able rationally to calculate the degree of danger .which threatens him, than the white man, under circumstances of similar, or even much greater hazard. Escape and life, are the unreasoned, resistless motives which nerve his action; and he wildly, madly struggles for refuge and safety, whether angels or devils oppose, under the mere instinct of the frightened brute fettered in the toils. The testimony shows, up to the time of his being tied and locked up, a silent submission to, and endurance of, both authority and suffering, even beyond what humanity permitted, had punishment been deserved. But the prisoner appears to have done nothing, either “ worthy of stripes,” or that by possibility, could have disturbed the glaring demon that seems to have tormented the deceased. From that point, therefore, the prisoner’s fears, as to what was yet to befall him, rose dominant in his heart; and, in determining the degree of criminality attaching to his subsequent conduct, what more reasonable ground could exist for believing that his life or limb was in danger, than a knowledge of the “violence and cruelty” of the man by whom he was then threatened, “ in his management” of his fellow-slaves on his master’s plantation ? If the slave can allege apprehended danger, every cause of apprehension,’incident to the white man, applies to the negro. It is a principle involved in the constitution of the human mind, and uniform in its development and operation among all races.
    Could it not have been proved, as against the prisoner, that the deceased was a man of mild, kind, and gentle disposition and conduct, in his general management of that plantation ? It cannot be doubted. Why ? ' Because from such a man the prisoner could not be presumed to have had a reasonable fear of his life or limb, under • the facts of the case. The expression implies that, with such knowledge in his bosom, he would have been presumed and required to have blended that, as a fact, in his reasoning as to what was the danger that he must repel. If so, surely he may be permitted to prove the reverse, for the purpose of drawing a reverse conclusion. Who shall say what special facts, bearing directly upon this issue, would have been elicited had this testimony been permitted ? An extreme case tests a principle. Suppose it could have been proved that it was the “ general’’ rule of this overseer, whenever he bound a negro, locked him up, and went off, shortly to return and cut his throat! Can it be said that a knowledge of this “ general” management on the plantation where the prisoner lived,'would have been irrelevant to the issue ? The testimony should have been admitted. The error was not cured by admitting testimony of the “ general character of the deceased as an overseer.” The prisoner may never have heard of his “general character as an overseer.” He may even have heard that his character was that of a kind man. This last could not affect what he saw and knew, in his special conduct, on that special plantation. If a man should have the general reputation of being a kind husband, father, kinsman, friend, citizen, and schoolmaster, and, in prosecution of a pupil, for some resistance to him, the pupil could prove that, in managing the special school, of which he was a member, the man had been a most unmerciful and cruel master, could he obtain the benefit of that fact by being confined to the master’s general character in the community ? If a knowledge of the general character of deceased is permitted to affect the criminality of the prisoner, in his behalf shall not a confirmation of that character, from the direct evidence of his senses, equally avail him ? Suppose that overseer to have had no general character, how then could the prisoner have obtained the benefit of what was even the probable conduct of the deceased on Walker’s plantation ? But the argument, to our minds, loses the strength of its simplicity by elaboration.
    2. We call the attention of the court to the sixth charge given for the State, for the purpose of obtaining for the prisoner the benefit of an abler argument than we can make if it was error. The subject of apparent, -without actual danger, as an excuse for killing, since the trial of Selfridge and Granger, has undergone such a thorough and critical examination, that it would seem to. have been exhausted. If it has not, however, as applicable to the phase presented by the charge, we shall not weary ourselves and the court by reading through the mass of cases on the point. The question is, if a man, through mere fear, kill another, must he be hung? We think not.
    The sixth charge for the State is in these words: “If a party, through mere fear of his life (there being no apparent or real danger), kill another, it is not justifiable.”
    This charge is error, because it assumes that the killing was from mere fear, and yet denies justification. We conceive that where a party kills through mere fear, he is justified, and that when this fact appears, nothing farther can be examined. The principle is without qualification. To deny it, is to assert that a good man may be hung; for a good man may kill through mere fear. The mind of the prisoner is the test of his guilt. If his state of mind, when he killed, was not wicked, but filled by a passion or sentiment, consistent with kindness and peace, but one inciting to self-preservation, and under its prompting, he kills: to punish him, would be to punish a man whose mind was guiltless. This will not be done, unless the organization of society for human protection demand it. Mere fear, the veriest cowardice, cannot be held as crime. To do so, is to hold the Great Maker responsible. We do not hold the machine, but the machinist, responsible for its defects. “We are the workmanship of his hands.” To hold a man punishable for the legitimate results of a nature which God has given him, is to say that God has made a class of men whom other men decide are not worthy to live. As well might the lion destroy the hare because it is timid, and be justified, as to say that a timid or cowardly man shall be punished for the inevitable effects of his nature. Man shall not take the life of his fellow, is a general principle. If he do so with a bad heart, he may rightfully be punished. If he did not kill from a bad heart, the inquiry stops at once, in deciding upon the question of his punishment. It is not material to show under what motive, passion, impulse, or sentiment, he did kill. In showing that he did not kill under a wicked one, his prosecution ceases. If, therefore, this principle was denied in the above charge, it was error. It does deny it, distinctly. It permits the jury to find and believe that the prisoner killed through fear of his life; and does not stop the examination there, but directs their attention to other facts or subjects, as necessary to complete the prisoner’s defence. We do contend “ that if the jury belieye that the prisoner believed that his life was in danger, and killed from mere fear, he is justifiable.”
    But admitting that a killing from mere fear of life must be compounded, in some way, as an element, with the principle; it may, then, thus be stated: “ A party who kills from mere fear of his life is justifiable, if danger be apparent.”
    This addition, we conceive, does not virtually change the principle, as first stated. By whose mind is the supposed presence of the danger to be decided? We answer, the prisoner’s, or party killing. [Wharton.] To make any other standard the test, would be to determine the character of one man’s acts by the operations of another’s mind. Surely this cannot be done. By the action of his own mind must he “ stand or fall.” “ The mind is the standard of the man.” Who dare do any act under the promptings of his own reason or conscience, if when brought into judgment for it, by his fellow-man, his want of wickedness can be admitted, and his life or liberty yet be forfeited, upon alleged wickedness of mind and intention ?
    In such case, therefore, in deciding in reference to the presence of apparent danger, they can only look to what was the mind of the prisoner. Not what abstract reasoning upon the facts would suggest; not what, under the facts, they believe they would have thought; not what they think the prisoner ought to have thought; but what they believe the prisoner did think at the time. This is the test which alone gets to the proper standard in weighing his guilt. If a party bad shown sufficient grounds upon which the jury would have decided, under the action of their own minds, reasonable cause of apprehension, but in getting back to the state of the prisoner’s mind, they believe that he did not entertain nor act upon that apprehension, they would justly convict him. Why ? Because his mind is the test of his conduct. If, on the other hand, judging by their own minds, they believe that reasonable grounds did not exist for. apprehension, but, in getting back to the prisoner’s mind, they believe that he did so think, and merely acted upon that thought, they.should acquit him. Why should the actual state of the mind of the prisoner, against the reasoning of the jury, convict in the one case, and not acquit in the other ? If, therefore, the rule is, that a killing from' fear of life is justifiable, under apparent danger, and the presence or not.of this supposed danger is to be tested by the belief of the prisoner at the time, then an admission that he killed from fear of life, involves the farther admission that he believed the danger was present. It is impossible to conceive an admission that-a party killed from fear, and a denial that he entertained apprehension. Such a paradox is an impossibility under the constitution of the human mind. They are inseparable.
    The principle, therefore, as first stated, is the same, with or without the addition, “ if danger is apparent.” The jury would have only to find the same fact, under either, viz., that the prisoner did kill through fear of his life, at the time. In finding that, it includes the presence of supposed danger to his mind.
    The charge,' therefore, as given, even admitting the principle correctly stated,’ as far as it goes, was not sufficiently definite, and was calculated to mislead the jury, in not declaring, that in deciding upon the presence of danger they were to be governed by what they believed was the belief of the prisoner.
    The jury, under the charge, could-ask two questions:
    1. Did the prisoner kill through fear of life ?
    He did.
    2. Was there apparent danger ?
    To our minds there was not.
    He is found guilty.
    Had the important question been asked, “ Do we believe that the prisoner believed he was in danger?” it might have been replied, “We believe be did.” If so, the prisoner should have been acquitted. To enable that question to be decided by a jury, the case should be reversed.
    3. There' is error in the 14th charge, because it assumes as proved, the most important fact in the case. It says : “ Whether the defendant^ at the time he struck the blow, intended to kill the deceased, or only to knock him down to effect his escape, he is guilty,” &c. This charge assumes that the prisoner did strike the blow; and, also, that he was then attempting to “ effect his escape.” A court cannot assume the proof of a fact, and then charge that they constitute a crime. There is nothing hypothetical in this charge as to the existence of the facts stated. (36 Miss. 165.)
    4. The 4th charge, as asked by the prisoner and refused, was error. It presents the question; if a jury, in the absence of proof of good character, would be satisfied of a party’s guilt from the testimony, whether the introduction of such proof, may not authorize a jui’y to acquit ? Whether the proof of a good character may not avail to save, when all is lost without it ? Unless such is the law, the whole doctrine of the introduction of, character for the prisoner, is an absurdity. It also destroys that incentive to virtue, and to a life of purity and peace among men, created by a knowledge of the fact, that a good character may be the only refuge in times of trouble; and when entangled in toils from which there is no other escape. The remarks of Mr. Russell, Criminal Law, vol. 2, p. 704, are as follows: “ It has been usual to treat the good character, of the party accused as evidence, to be taken into consideration only in doubtful cases. Juries have generally been told that where the facts proved are such as to satisfy, their minds of the guilt of the party, character, however excellent, is no subject for their consideration ; but when .they entertain doubt,” &c., “ they may turn their attention to character. It is, however, submitted with deference, that the good character of the party accused, satifactorily established, is an ingredient which ought always to be submitted to the consideration of the jury, with the other facts and circumstances of the case.”
    Mr. Sergeant Talford says: “We may be permitted to add, that according to the language frequently adopted by>judges in their charges, it may be proved that character is, in no case, of any value. They'say that, in a clear case, character has no weight, but if the case be doubtful, then the jury ought to throw the weight of the prisoner’s character into the scale, and allow it to turn the balance in his favor. But the same judges will tell juries ‘that in every doubtful case they must acquit.’ In clear cases, therefore, character is of no avail; and in doubtful cases, it is not wanted. .... The sophism lies in the absolute division of cases, into clear and doubtful, without considering character as an ingredient which may render that doubtful which would otherwise be clear. There may be cases where no character could make them doubtful. There may be others, in which evidence given against a prisoner, without character, would amount to a conviction, in which a high character would produce a reasonable doubt; nay, in which character will actually outweigh evidence, which might otherwise appear conclusive. It is, in truth, a fact varying greatly in its own intrinsic value according to its nature; varying still more in its relative value, according to the proofs to which it is opposed, but always a fact, like all other facts proved in a cause, to be weighed and. estimated by the jury.” (Wharton, 235.) There are cases, as these able writers admit, applying the benefit of character only to doubtful cases. The above argument is so conclusive, both as to the absurdity and the injustice of such a rule, that nothing can be added. If good character cannot be considered so as to make that doubtful which would otherwise be clear, let the whole law upon the subject be abolished. It is not only surplusage, but a mockery. In regard to the character of the deceased, our own court has said, “ That it is as much a fact for the consideration of the jury, as any other fact in issue.” 31 Miss. 511. If- so, the fact of character cannot be set aside, until a conclusion is reached from the balance of the testimony. It must be blended with the testimony in the first instance. Of this right the prisoner was deprived by the charge refused, and directly, in equally plain language, by the charge given. We asserted that the prisoner’s good character might, of itself, be sufficient to create a reasonable doubt in connection with the other testimony, of which the jury were to judge. This the court refused; which was to assert that good character cannot, of itself, create a reasonable doubt. That it must not be considered in connection with the other testimony; and that the jury cannot judge whether if they connected it, it might not create such doubt. The latter clause of the charge given, requires the jury first to ascertain whether the case is “ clear,” without considering the fact of character. If so, they must find a verdict of guilty.
    Again : The charge as given is contradictory in itself. It says “ the character of the prisoner is as much a fact for the consideration of the jury, as any other fact in the case and immediately instructs the jury that it must not be considered as the “ other facts in the case,” and may not be considered at all! If it is to be considered as “ any other fact,” it cannot thus be put aside nor disregarded, nor be made to depend for consideration on contingencies, any more than “ any other fact;” and the jury could as well thus treat the fatal blow, as the fact of character. Had the jury been permitted to compound the element of his good character in the mass of the testimony, it is probable they would not have found him guilty of murder.
    The argument of Messrs. Sale and Phelan in support of the position that the evidence was insufficient to uphold the verdict, is omitted.
    
      T. J. Wharton, attorney-general, for the State.
    The first error assigned, was the exclusion of proof offered through the witness, Walker, owner of plaintiff in error, as to the general management of deceased, with reference to violence and cruelty on his (Walker’s) plantation; and specific acts of unmerciful severity during the time he had been on said plantation, which had since come to the knowledge of witness. The witness, Walker, had 'already proved that defendant had lived with him as overseer about a month; that when he first applied to him for the situation, he declined to employ him, knowing him to be a violent, severe, and cruel man: being unable to find another to suit him, he afterwards sent for defendant, told him he should have to employ him, b,ut was afraid of his violence and severity; defendant said he thought he ■had now learned to govern himself measurably. Witness then placed his negroes under his charge. This was stated on cross-examination without objection by the State.
    We will first, consider the question of the admissibility of the evidence offered and excluded, upon general principles, as applicable to a conflict between, equals, in which one is slain; second, as it may be affected by the relation or institution of slavery, and a contest between master and slave, in which the latter slays the former.
    I. Was the testimony offered properly excluded? I maintain that it was, and that greater latitude was allowed than the law authorized, in permitting the witness to speak of the known cruelty and violence of deceased, before the question which was objected to was propounded; but as this part of his statement was not controverted by the State, I do not stop to consider it.
    The general rule is thus broadly stated. On the trial of an indictment for homicide, evidence to prove that the deceased was well known, and understood generally by the accused and others, to be a quarrelsome, riotous, and savage man, is inadmissible. In the eye of the law, to murder the vilest and most abject of the human race, is as great a crime as to murder its greatest benefactor. Whart. Am. C. L. 234; State v. Field, 14 Maine R. 248; State v. YorJc, 9 Metcf. 110 ; State v. Hawley, 4 Harring. R. 562 (a very strong case).
    In Queensbury v. State, 3 Stew. & P. 308, it was held, that evidence of the good or bad character of deceased is not admissible, except in cases where the killing is attended by circumstances to create a doubt of its character.
    In opposition to the rule established by the current of authority, and as furnished in the above quotation from Wharton, the latter author says, that there are one or two cases in which, while the above rule is distinctly recognized, it has been said, that when the killing has been under such circumstances as to create a doubt as to the character, of the offence committed, the general character of the deceased may sometimes be drawn into evidence. The above case from 3 Stew. & P., and State v. Taclcett, 1 Hawks’ R. 210; Wright v. State, 9 Yerger, 342, are cited as three cases of that character; and, in noting them, the author adds: “ But the rule undoubtedly is, that the character of the deceased can never be made a matter of controversy, except when involved in the res gestee, for it would be a barbarous thing to allow A. to give as a reason for killing B., that B.’s disposition was savage and riotous and refers to the case of State v. Tilly, 3 Ired. 424, an indictment against an overseer for killing his employer: it was there held, that it “ was not competent for the prisoner to offer evidence of the general temper and deportment of the deceased towards his overseers and tenants.” The said author further said: “ The defendant may prove that he was acting in self-defence, or he may exhibit whatever provocation was given to him by the deceased, but he cannot set up general reputation as a defence.”
    In his work on the Law of Homicide, the same author, referring to the three cases above noticed, as modifying the general rule excluding evidence of the kind under review, adds: “ But as a general principle, the rule continues unbroken, that evidence that the deceased was riotous, quarrelsome, and savage, is inadmissible, even though such knowledge be brought home to the defendant himself, and any other rule would allow a private citizen to take upon himself the province of government in the punishment of crimes.” Whart. on Law of Homicide, 249.
    He cites, to support the principle asserted in the text, the cases, supra, 14 Maine, 248; 3 Ired. 424; 9 Metcf. 110; 4 Harring. 562.
    Even where it is the general character of the accused which is put in evidence (which can only be done by himself), it was for a long time held that it was only in doubtful cases, and cases of circumstantial evidence, that such testimony was admissible. Starkie, 1st vol. on Ev. 35, says: “ Such evidence ought never to have any weight, except in a doubtful case.”
    Judge Story said, in United States v. Freeman, 4 Mason, 510, “ Where the testimony is positive, and satisfactory to the jury, such evidence cannot avail.” Parsons, Ch. J., in Oom. v. Hardy, 2 Mass. R. 317, and Savage, Ch. J., in People v. Vane, 12 Wend. 82, reiterated the same opinion. I refer to these authorities with the view to show the weight which such testimony is considered as entitled to when offered on behalf of the accused, and the reas.ons upon which its admissibility has been placed. The analogy deduced from these reasons and authorities, in my view, clearly negative the existence of the rule insisted upon in the brief of opposing counsel, and the alleged error on the point under notice.
    So much on the first branch of the objection urged to the action of the court, in excluding evidence as to general management of deceased, as to violence and cruelty on the plantation; or, to state the proposition more- correctly, as to his character for general violence and cruelty (not to defendant) on said plantation, prior to the killing. I come now to speak of the second branch of the same exception, viz., exclusion of evidence of “ specific acts of unmerciful severity (not to defendant) during the time he was on said plantation, which had since come to witness’s knowledge.” And here the rule is as clear as upon the first.branch. To afford the least foundation for the introduction of pretended specific acts of cruelty on the part of the deceased, as part of the res gestee; and it would only be under the idea that they were a part of the res gestae that a court would tolerate argument on the point; they must have been specific acts of cruelty towards the defendant, not towards other slaves on the plantation. When the character of the defendant is put in issue by himself, it is done to create a reasonable doubt in the mind of the jury, that one of approved good character would revolt at the idea of "committing the crime charged.
    It is a circumstance to be considered by them, but subject to the rules of law stated upon the first point of the objection. But here again, I remark,' that it is only general charactér, not general- character at a particular time and upon a particular plantation, for it is paradoxical, in legal sense, to speak of that as general character. But his character as known and regarded by-the community at large, is all that even a defendant can offer in evidence. ■ • ■
    Says a learned author on evidence: “The issue is,,whether defendant was guilty-of-the particular, offence, and he advances to ■méet this issue with a presumption of general "good character,.which nothing but'his own 'election can defeat. No matter what independent crime he may have been guilty" of, or what infa-my he has incurred, unless he invite, the investigation himself, neither crime nor infamy can be suggested against him; and it is the pride of English and American jurisprudence that the rebuke which drove Jeffries ■to suicide,.and Wright-to jail, is stiff waiting for any prosecuting officer -who uses his - official station to procure a conviction, in advance,"by appeal to bad character or past offences.”
    The defendant is-restricted-to the particular trait or quality im volved in the prosecution. “ Peaceableness, or regularity of conduct and good feeling to the deceased, would, therefore, be the proper points-of/defence. The, defendant is restricted to general evidence; it being reserved for the prosecution to put in evidence particular acts, where defendant opens the way,by putting general character in issue.” Wharton’s Law of Homicide, 244.
    The rule is nowhere more concisely or accurately stated than by Phillips : “ The inquiry must also be as to the general character” (italics are his); “ for it is general character alone which can afford any test of general conduct,” &c. And again: “ Proof of particular transactions, in which the defendant may have been concerned, is not admissible as evidence of his general good character.” 1 Ph. Ev. 764 (4th Am. from 10th Eng. ed.).
    And if such be the restriction upon the rule, in its application to the defendant, in proof of his general good character, how much the stronger would the restriction become, in its application to the bad character of the deceased, when defendant offers to put that in issue ? So I conclude this branch of the subject with the remark, that evidence of general violence, or of specific violence (not to the defendant), on the part of deceased while on that plantation, was properly excluded.
    II. Having seen what is the rule upon the subject, as applied to a conflict between equals, in which one of them is slain, I proceed in the second place, to show that a more restrictive rule applies to a case like the present, where a slave kills his master or overseer. And here I do not pause to discuss the question that African slavery was unknown in the realm of Great Britain, and that the laws of England, therefore, do not apply. I take up the question as it has arisen, and been decided in the Southern States of this confederacy, in which that institution exists under the sanction of law.
    In the case of The State v. Jarrett, 1 Ired. 86, which was an indictment against a slave for killing a white man, not his owner or overseer, Judge Gaston says: “ The law will not permit the slave to resist. It is his duty to submit, or flee, or seek the protection of his master.”
    Judge Turley, in Jacob v.The State, 3 Humph. 519, says: “ Unconditional submission is the duty of the slave; unlimited power is, in general, the legal right of the master. But there are exceptions. The master has not the right to slay his slave, or put his life in great or useless peril,” &c.; “but the right to obedience and submission, in all lawful things, on the part of the slave, is perfect in the master, and tbe power to inflict any punishment, not affecting life or limb, which he may consider necessary to keep him in such submission, and enforcing such obedience to his commands, is secured to him by law; and if, in the exercise of it, with or without cause, the slave resist and slay him, it is murder, and not manslaughter; because the law cannot recognize the violence of the master, as a legitimate cause of provocation. Such we hold to be the law. This is, we believe, the first case in which the courts of this State have been called upon for an application of this principle, but it has been adjudged in other places, to which we may refer.”
    I refer, also, in the ease of The State v. Will, 1 Dev. & B. 163, to the opinion of Judge Gaston, one of the ablest of the many able opinions of that most enlightened jurist. There the prisoner was indicted for killing his overseer. The court advert to the relation between the parties, the nature of the institution of slavery, its modifications of the rules of common law, as to conflicts between equals, and rather deprecatingly announce the rule of law to be, “ that there is no legal limitation to the master’s power of punishment, except that it shall not reach the life of the offending slave. It is for the legislature to remove this reproa'ch from amongst us, if, consistently with the public safety, it can be removed. We must administer the law, such as it is, confided to our keeping. They assent to the unquestionable right of the owner to judge of the of-fence which had been committed by the slave, and to. inflict such chastisement as, according to the usages of discipline, and his sound discretion, was proper to enforce subordination.” And again : “ The act of the slave, in attempting to evade punishment, was a breach of duty.” Commenting upon the facts of the case, showing atrocity on the part of the overseer to the defendant, far greater than it is pretended was ever exercised by the deceased in this case; the negro having been badly shot by the overseer as he ran; the other negroes having been sent in pursuit; the overseer joining by a nearer route, on horseback ; a conflict ensuing between the other negroes and the accused, in which the overseer joined, they say : “ Suffering under torture of a wound likely to terminate in death, and inflicted by a person having, indeed, authority over him, but wielding power with the extravagance and madness of fury; chased in hot pursuit; baited and hemmed in like a crippled beast of prey that cannot run far; it became instinct, almost uncontrollable instinct, to fly; it was human infirmity to struggle ; it was terror, or resentment, the strongest of human passions, or both combined, which gave to the struggle its fatal result; and this terror, this resentment, could not but have been excited in any one who had the ordinary feelings and frailties of human nature. But will the law permit human infirmity, to extenuate a homicide from murder to manslaughter, in any case where the slayer is a slave, and the slain is the representative of his master ? Will it allow, in such a case, any passions, however common to human beings, and however strongly provoked into action, to repel the allegation of malice ?”
    The court, it is true, held that defendant was not guilty of murder, but of feloniously slaying and killing Baxter, the deceased. I refer to the case for the value of the principles discussed by the court, and the analogy they furnish. The fact that the killing was not adjudged murder, does not conflict with any principle I insist upon. On the contrary, I say, if there ever was a case which authorized clemency to the slave for killing his overseer, that was the case, upon the facts as presented in the record. Judge Gaston certainly felt the appeal which the facts in the case made, and construed the law as humanely as his sense of duty would admit. And yet, after the most thorough examination of .the legal principles involved, and the authorities applicable to the case, could find but'a single case in which the slave might resist his master, and that was when his life was in danger ; actual, immediate, and not apprehended danger.
    In The State v. Tackett, 1 Hawks, 210, it was held, that “it exists in the very nature of slavery, that the relation between a white and a slave is different from that between free persons; and, therefore, many acts will extenuate the homicide of a slave, which would not constitute a legal provocation if done by a white person.” See, also, State v. Ocesar, 9 Ired. 391, reviewing the other cases from the State on the same subject, especially the elaborate and able opinion (dissenting) of Ch. J. Ruffin.
    There is no analogy to be drawn between cases where a free person is on trial for murder, and a slave for killing his master or overseer. 4 Jones N. C. R. 354.
    III. The third error assigned was the giving of the sixth charge asked by the State. That charge was as follows: “If a party, through mere fear that his life is in danger, when there is no danger, either apparent or real, kill a party, such killing is not justifiable.”
    I understand that charge to assert a correct rule of law, as a general principle, and as applicable in all cases of conflicts between equals, and certainly not obnoxious to objection in a case like this, of the killing of an overseer by a slave under his charge.
    Nothing but actually impending and unavoidable danger to life, can excuse a killing by the slave in such case. He takes the risk, when he slays his owner or overseer, of affirmatively establishing, by proof, the existence of such danger as the above. The objection to the charge, I suppose, is based upon'the Self ridge case in Massachusetts, the Granger case in Tennessee, and Cotton and Wray in Mississippi. In opposition to any such view of the law, I rely upon Price’s case, 36 Miss. R.
    Wharton, in his work on criminal law, refers to the two cases first above named, Selfridge and Granger, and says, “the principle has been pushed still further in Tennessee (Granger’s case), where it has been held that if a'man, though in no 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 manslaughter nor murder, but self-defence.” The author explains those cases, and states the true rule upon the subject. He cites the case of The State v. Green,. 4 Ired. 409, in which the principle is thus laid down : “ So the belief that a person designs to kill me will not prevent my killing him from being murder, unless he is making some attempt to execute his design, or at least is in an apparent situation to do so, and thereby induces me reasonably to think he intends to do it immediately.” He also refers to a very important case in New York, which I do not find reported, in which the judge delivering the opinion, said: “ Who is to judge of the reasonable ground to apprehend a design to do injury? The grounds must he made to appear on the trial, and the jury must be satisfied that they were reasonable grounds upon which to found the apprehension of design to commit the felony, or to do some great personal injury. It is true the party assailed must, at the time, judge of the ground for his apprehension, but he judges and decides at bis peril, so far as tbe question of entire justification is concerned.” Wharton on Criminal Law, 392, and note a.
    The statute under which the indictment is framed, Code, 248, art. 59, dispenses with proof of express malice. The statute, Code, 601, art. 168, in reference to excusable homicide, has no application to this case; it is no part of the slave code, but has reference to a homicide committed by a white man.
    IV. The next error assigned is the giving of the 14th charge for the State, as follows : “ That whether the defendant at the time he struck the blow intended to kill the deceased, or only to knock him down to effect his escape, in either case he is guilty of murder, if he used such means as were calculated to endanger the life of deceased or do him some great bodily injury.”
    The objection taken to this instruction is that it assumes as proved, facts which were not proved.
    I cannot perceive the force of the objection. It is a question to be settled by reference to the body of proof in the record, and your honors will refer to that without a discussion of it.
    V. The next error assigned was the refusal of the 4th charge as asked by defendant, and in giving it as modified. The modification was necessary properly to explain the rule of law which was too broadly stated in the instruction as asked. Besides, said instruction, as refused, undertakes to decide for the jury the weight that should be given to the good character of the accused. In effect it tells the jury, that in a certain contingency, that proof of itself, was sufficient to raise a reasonable doubt of his guilt.
   Smith, C. J.,

delivered the opinion of the court.

The plaintiff in error was indicted and tried for the murder of one William G. Ford; and convicted. A motion was made in the court below to set aside the verdict, and for a new trial, which was overruled ; whereupon the defendant excepted, and has brought the cause before us by writ of error. The bill of exceptions taken to the judgment on the motion for a new trial, contains the evidence in the cause, and presents the grounds of error relied on for a reversal of the judgment.

A detailed statement of the evidence is unnecessary, as it will be quite sufficient to refer to only such parts of it as may be requisite to a proper comprehension of the questions raised by the assignment of errors, and discussed by counsel.

1. The first exception relates to the exclusion of certain evidence offered by the prisoner.

The deceased was, at the time of the alleged homicide, the overseer of one John A. Walker, and as such had under his control and management the accused, who was a slave and the property of the said Walker, The commission of the homicide by the prisoner, and the facts and circumstances immediately attending the perpetration of the deed, are distinctly proved. The testimony of Mrs. Ford, the only witness, as it appears from the record, who was present at the killing, shows very clearly that the prisoner when he slew the deceased was in no present danger either real or apparent; and that there was not reasonable ground to apprehend that the deceased meditated taking the life of the accused, or designed to do him some great bodily harm, and there was imminent danger of such design being accomplished.

On this state of evidence, the prisoner offered to prove the general management of the deceased on the plantation where he was the overseer, “ with reference to violence and cruelty;” and (also) to prove “ specific acts of unmerciful severity” committed by him while acting as such overseer, which had come to the knowledge of the witness, subsequently to the killing.' This evidence was excluded, and the prisoner excepted. And this ruling of the court is assigned for error.

In the estimation of the law, to murder the most wicked is as great a crime as to murder the best and most innocent of the human species. Hence, as a general rule, it is held by all the courts', that on the trial of an indictment for homicide, evidence to prove that the deceased was well known and understood, as well by the accused as others, to be a quarrelsome, vindictive, and dangerous man, is inadmissible. When, however, the character of the deceased is involved in the res gestee, evidence in regard to it may be introduced. As when it is shown that the accused had. reasonable ground to apprehend immediate danger to his life from the deceased, the character of the deceased, in connection with previous threats, &c., may be given in evidence as explanatory of the motives upon the defendant’s action. Am. C. L. 235.

The courts in North Carolina, in Alabama, and Tennessee, while acknowledging the general doctrine as above stated, have gone a step farther, and hold, that where the homicide has been committed under such circumstances as to create a doubt as to the character of the offence, the general character of the deceased may sometimes be given in evidence. The State v. Tackett, 1 Hawks, 210; Wright v. The State, 9 Yerger, 342; Queensbury v. The State, 3 Stewart & P. 315. As in the case last cited, where it was held that “ if the circumstances of the killing were such as to leave any doubt whether the defendant had not been more actuated by the principle of self-defence than that of malice, it would be proper to admit any testimony calculated to illustrate to the jury the motive by which he had been actuated.”

The principle here recognized is in conflict with the generally received doctrine on the subject, which, as we have seen, excludes evidence in regard to the general character of the deceased, except when it is involved in the res gestee. But without asserting that extreme cases might not be presented, in which evidence of the general vindictive, revengeful, and dangerous character of the party slain might properly be allowed to go to the jury, as explanatory of the state of defence in which the defendant placed himself, although not strictly a part of the res gestee ; if the question here presented were tested by the doctrine laid down, in the cases cited, it seems clear that the court did not err in ruling out the evidence. For here there is no pretence for the assumption that the homicide was committed under such circumstances as to create a doubt as to the character of the offence. And it is clear that the reasons upon which the rule, in reference to the admissibility of evidence, as to the general character of the deceased, is founded, apply with greater force, where it is sought to introduce evidence in regard to specific acts of the deceased, or to prove the general tenor of his conduct, for a specified time, and in relation to particular subjects.

But the real question involved in the exception, is not whether, in prosecution for murder, it is competent, under any circumstances, for the defendant to prove the general revengeful and dangerous character of the deceased. It is whether the general management of slaves, on a plantation, by the deceased, as characterized by violence and cruelty, and whether specific acts of severity and cruelty committed by him, while acting in the capacity of an overseer, may be proved as circumstances going.to justify a homicide, by a slave, committed upon him while acting as such overseer.

Whether considered abstractly, or in reference to the facts immediately connected with the killing in this case, it is manifest that the validity of this-position rests upon the doctrine, not heretofore announced in this court, that in an indictment for a homicide committed by a slave upon his master or overseer, the violent and cruél character of the overseer or master, in the government of his slaves, and specific acts of severity and cruelty committed by súch overseer or master, may be considered by- the jury in determining the guilt or innocence of the accused, although the killing may be proved to have occurred, under circumstances which show that the party charged, was at the time in no present danger, real or apparent, and that he had no reasonable ground for-apprehending danger to life or limb, from the deceased, or that the deceased designed to take his life or do him some great bodily harm, and there was imminent danger of such design being accomplished. In other words, that a. slave charged with the murder of his master or overseer, may excuse or justify the deed upon the ground that, being about to be chastised by his master or overseer, or being apprehensive that he would be punished for some real or imputed delinquency; from the known violent and cruel character of the deceased in the management of slaves, and" from' the fact he had been guilty of particular acts of great cruelty upon other slaves under his charge, he had good reason to apprehend, and in fact did believe, that some great bodily harm would be inflicted upon him, or that his life would be taken.

It is scarcely necessary to- say that this proposition is utterly untenable. It lays down a rule which, if recognized by the courts, would produce the most disastrous consequences. If the slave, when he is about to be chastised, or has just reason to apprehend that he will be subjected to cruel and unmerited punishment, be informed, that in order to escape, he may innocently slay his master or overseer if he really believes that by the apprehended punishment his own life will be taken or greatly endangered; and that to •make good his defence in a epurt of .justice, it will be sufficient to prove the general violent and cruel conduct of the deceased in the government of slaves; the slave population of the State will be incited to insubordination and murder, and the life of the master exposed to destruction, either through the fears or by the malice of his slaves.

But the principle contained in the proposition, when applied to homicides committed by white persons, is equally untenable.

To make a homicide justifiable on the ground of self-defence, the danger must be either actual, present, and urgent, or the homicide must be committed under such circumstance as will afford reasonable ground to the party charged, to apprehend a design to commit a felony, or to do him some great bodily harm, and that there is imminent danger of such design being accomplished. Rev. Code, 601, § 34. Hence the mere fear, apprehension, or belief, however sincerely entertained by one man, that another designs to take his life, will not excuse or justify the killing of the latter by the former. Where the danger is neither real nor urgent, to render a homicide excusable or justifiable within the meaning of the law, there must, at the least, be some attempt to execute the apprehended design; or there must be reasonable ground for the apprehension that such design will be executed, and the danger of its. accomplishment imminent. State v. Scott, 4 Iredell, 409. A party may have a lively apprehension that his life is in danger, and believe that the ground of his apprehension is just and reasonable; but if he act upon them and take the life of a human being, he does so at his peril. He is not the final judge, whatever his apprehension or belief may have been, of the reasonableness of the grounds upon which he acted. That is a question which the jury alone are to determine.

2. The next objection applies to the sixth charge granted in behalf of the State. The charge is in these words: “ If a party, through mere fear of his life; there being no real or apparent danger ; kill another, it is not justifiable.”

In the argument of the exception to this instruction it was contended, first, that the charge was erroneous, because it admits or assumes that the homicide in question was, in point of fact, committed through mere fear; and second, because it denies ■ that a killing through mere fear is justifiable..

If counsel are correct in their construction of the charge, it is certainly erroneous, but not for the. reason assigned.

It would have been error if the court had said to thé jury, the prisoner on trial committed the alleged offence through fear of his life; but a killing from mere fear, where the party killing is in no danger, either real of apparent, is murder; in other words, a homicide, where the party killing is in no danger, actual or real, and has no reason to apprehend danger, is murder. An instruction bearing such a construction would be something more than a charge upon the weight of evidence. It would in effect, be a command to the jury to convict the prisoner.

Such, however, is certainly not the proper construction of the charge. It lays down a principle of law for the guidance of the jury in the most abstract form, leaving them perfectly free to weigh the evidence, and to determine whether or not the homicide was committed through mere fear- of life. There is, hence, no objection to the charge, unless the position be tenable that, a killing, through fear or apprehension that the party’s life is in danger, where, in point of fact, there was no real or actual danger, and no reason to apprehend any, is justifiable.

What we have said in reference to the first assignment of errors is a sufficient answer to this objection.

3. The next error assigned is that the court erred in giving the 14th instruction requested by the district attorney; which is in these words: That whether the defendant, at the time he struck the blow, intended to kill the deceased, or only intended to knock him down to effect his escape, in either case he is guilty of murder, if he used such means as were calculated to endanger the life of the deceased, or to do him some great bodily injury.”

The objection to this instruction is, that it assumes, as proved, an important fact in the case; and hence is a charge upon the weight of evidence.

It is the peculiar province and exclusive right of the jury to weigh the evidence, and to determine the facts of a case submitted to. their consideration. And the law is careful to guard against any invasion of their authority by the court. It is hence error for the court to instruct the jury as to the weight of the evidence before them, or to charge that any fact material to the issue was proved. For the same reason it. is improper for the court to assume, as proved, any fact involved in the issue, and make such assumption the basis of an instruction ; for such an act would, in effect, be a charge upon the weight of evidence. But it is not for every error committed by the circuit courts, in charging or in refusing to charge the jury, that this court will.reverse. It is only after an examination of the whole record, and when it appears that the party complaining has either been injured, or may have been injured by an erroneous instruction, that this court will interpose and correct the error.

In the case before us, the fact that the blow was given by the defendant, which caused the death of the deceased, was clearly and distinctly proven. Not a particle of evidence was offered which raised the slightest doubt as to the hand which dealt the fatal blow. It was certainly not a controverted fact, or one about which it was possible for the jury to doubt. Under these circumstances, it cannot be asserted that the jury were misled; and, therefore, that the defendant was injured by the instruction. On the contrary it may, with certainty, be affirmed, that, in respect to the agent in the homicide, the jury were not and could not have been influenced by the instruction. Such being the case, it would be to defeat instead of promoting'the true purpose of the law, to set aside the verdict for this cause.

4. The court, in behalf of the prisoner, was requested to instruct the jury, that “ the character of the accused, if proof has been made upon the point, is as much a fact for the consideration of the jury, as any other fact in the case; and if the jury should have been satisfied of his guilt, if no proof had been made of the character of the prisoner, yet if it has been proved that the prisoner was an obedient, peaceable, and submissive slave, up to the time of his alleged offence, the proof of such a character may, of itself, be sufficient to raise a reasonable doubt of his guilt; of which the jury are the judges.”

This charge was refused, and the following instruction was given in lieu of it: “ That the character of the prisoner, if proof has been made on the point, was as much a fact for the consideration of the jury as any other fact in the case; but no character, however good, is sufficient to authorize the jury to find the prisoner not guilty, if the proof is otherwise clear and satisfactory that the defendant is guilty as charged.”

The refusal of the court to give the former, and the giving of the latter, is next assigned for error.

We perceive no objection to the substituted charge, of which the prisoner had a right to .complain. And the instruction asked for him, we think, was properly withheld.

No precise or definite rule has been laid down by which to determine the weight to which, in prosecutions of this character, evidence of the good character of the accused is entitled. “ Juries,” says Sir William Russell, “ have been generally told that where the facts proved are sufficient to satisfy their minds of the guilt of the party, character, however excellent, is no subject for their consideration; but when they entertain any doubt as to the guilt of the party, they may properly turn their attention to the good character which he has received. It is, however, submitted that the good character of the party accused, when satisfactorily established by competent witnesses, is an ingredient which ought always to be submitted to the jury with the other facts and circumstances of the case.” 2 Russ. on C. 785. This view of the subject is sanctioned by high authority. Am. C. L. 235. And perhaps it is the better course, in no case, to withdraw from the consideration of the jury the evidence in regard to the good character of the accused. But while the good character of the accused is an ingredient which may be submitted to the jury, it would be going a great way too far to lay it down as a fixed rule, that proof of good character is sufficient to raise a reasonable doubt in the minds of the jury, when, excluding such proof, the evidence is sufficient to satisfy them of the guilt of the accused. This is the principle contained in the instruction, and for that reason there was no error in refusing it.

5. The fifth and last exception is, that the motion for a new trial was improperly overruled.

The only question raised under this assignment is, whether or not the evidence was sufficient to warrant the finding of the jury. And it is only necessary to say, without going into a minute examination and comparison of the testimony, that it was amply sufficient to sustain the verdict.

Judgment affirmed.  