
    THE STATE vs. JOHN MEDLIN.
    If several armed m"n go io a dwelling li'-use in the night’time, for the purpose nf seizing the Vody of the owner, without U ¿Tel authority, and one of them i e killed by the owner, !o prevent the ex"eution of their purpose, such ki:;ing is uoi murder;
    
    The State vs. Jarrutt, 1 Ivcd., 84, .cited end appro’.■ d.
    This was an indictment against the prisoner for the murder 'of one Hosea Little, tried before , Heath, J., at Eall Term of Mecklenburg Superior Court, 1864. On the trial --IJingstaff testified, 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 óf 1&62, came to the counties of Union and Mecklenburg in this State fo'i* the purpose of arresting deserters and persons absent from their commands without 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 the 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 w^s not a soldier, and five other persons, to go with him to the dwelling house of the prisoner, about 10 or IT 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 hoard 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, “ Cod damn you,” and fired a gun, the ball 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 mea 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 accidentallj 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 
      u bere 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 mep to come back, and the deceased and another started back : when they had got within about ten paces of the house, a door opened on the side which they were advancing on ; three men stepped from the house'; two guns were ñred in quick 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 at them as they ran. One Austin swore that he was one of the men summoned hy Lieut. Ringstaff ; when they first went te the house of the prisoner, one of the men named Short, went into the porch on the opposite side to where Lieut. Ringstaff was, and knocked at the door ; a female voice within asked, '? who’s there,” to which Short answered, “ it doesn't matter ; I 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 gaid, ¡í i/ 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 the army of the- Confederate States, and that he tired 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 * 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 persons who might lawfully come to arrest them, and if the prisoner hilled, 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 he murder.
    3rd. If the prisoner believed, and had'reason to believe, that a mere trespass only was intended, and killed to prevent swell trespass, it would he murder.
    4th. If the prisoner killed for revenge for anything .that had been done to his house, and out of malice, it would he murder. i
    5th. That if the prisoner killed because his house was broken into in the night, he not knowing what waste follow' be would be guilty of nothing ; that if the prisoner believed, and had cause to believe, that a known felony was about to he committed &n himself, his property or his family, the parties being in apparent situation-to commit said felony, and T^e killed to present it, then he would he guilty of nothing.
    The jury found the prisoner guilty, and from judgment according to the verdict, the prisoner appealed.
    Attorney General f5r 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 th«, part of a slave to a white man would justify a battery, but not an excessive one, awarded a venir j 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 these 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 him.” But by the word whip, he must necessarily be understood as meaning te “ 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., “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.” Eor, 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 ease 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, assmnes'that the deceased, arid the party to which he belonged, were acting ibithout proper authority, and that what they did, or intended to do, was a trespass, and must necessarily be understood a* 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 bis body. Killing to prevent a trespass of tbis nature is certainly no more than manslaughter..

It occurred to us that this error might be cured'by the fifth instruction. On consideration, we are satisfied that that instruction cannot have this effect, because it is qualified and restricted by the words, he not knowing what was to follow.” On the 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 propqr authority to do so ; which view is not presented by this instruction, and, consequently, it deés not cure the error of the third Instruction1. The first and second instructions assume that there was proper authority to arrest; the other instructions assume tljat there was not. Tbis most important question is left undis-posed of, and to that omission the want of clearness in the ease 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 as mere abstract positions of law, without reference to what was testified to by the witnesses.

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