
    The State vs. Margaret Kirkland, Powell Kirkland and McRa Kirkland.
    
      Murder — New Trial.
    
    On the trial of an indictment for murder, the presiding Judge charged the jury that the prisoners were either guilty of murder or of no offence. The verdict was guilty, and on appeal, held, that there was a view of part of the testimony, which, if true, reduced the offence to manslaughter, and for error in not presenting that view to the jury a new trial was ordered.
    BEFORE DAWKINS, J., AT KERSHAW, SPRING TERM, 1867.
    The report of his Honor, the presiding Judge, is as follows:
    “The prisoners were indicted jointly, with Duncan McRa, who has "not been arrested by the process of this Court, and who, if alive, is beyond its jurisdiction.. The others were tried together, and found guilty. To a correct understanding of my omission, as stated in the first and second grounds of appeal, it will be necessary the evidence should accompany this report, (a)
    
    
      “I charged the jury, that if defendants had gone to the plantation in charge of deceased, intending to drive him by force or violence, or intending to chastise him for the alleged /'railing, of another son of defendant, Margaret, (of which, however, no proof was given,) and agreed to stand by and assist each other, and in the execution of this unlawful purpose they took the life of the deceased, all who were present, aiding and abetting, were principals, no matter which one inflicted the mortal wound. The first ground of appeal complains not of misdirection, but of omission to charge as to grades of homicide, and that, in any view of the testimony, the defendants might be guilty of manslaughter. I regret to say, in any view of the testimony I was able to take, the case was one of murder, or no offence. William Kirkland, who was the husband of Margaret, the defendant, died in 1863, intestate. He left, as his executors, his brother, John Kirkland, the father of the deceased, Taylor and--. At the death of William Kirkland, his nephew, James Kirkland, was the overseer and manager of the plantation of William Kirkland. The testator did not reside on his place, nor did his family after his death, though after his death they lived on a place where James Kirkland was killed, and the lands were probably contiguous. The deceased, after the death of William Kirkland, was continued as the manager of the place by his executors. This was not agreeable to the widow and children of the testator, which appeared from the evidence; but no complaint was made to the executors until the day of the homicide, when a letter was received by the father of the deceased, which I attach hereto. The first matter I submitted to the jury was, whether all the defendants had combined or conspired together to do an unlawful act, and suggested it was difficult to be established by direct evidence, but was to be established by the acts of the parties at the time, and antecedent, and subsequent. I adverted to the fact, that all the defendants had expressed feelings of unkindness and ill-will towards the deceased. That the defendants, with Duncan McRa, all left the house of Margaret Kirkland together, with the acknowledged intention of going to the place where the deceased was to be found, and this at an unusual hour, being about or shortly after nightfall, and when, even according to the evidence of Powell Kirkland, one of the defendants, he and his mother arrived, they found deceased sitting down. Margaret alluded to his whipping her son. 'The deceased got up out of his chair with gun in both hands. Margaret Kirkland started up to him, gun fired, (in the air), she ran up and they closed.’ The testimony of Nettles, the §xst and principal witness for the State, is much stronger, but each shows the defendant, Margaret Kirkland, was far from being an indifferent-spectator: she, agreeably to tbe evidence, brought on the conflict, and when, as Powell Kirkland says, they ' were closed,’.the deceased received in his person the .contents of the discharges of three guns or pistols, and a fourth grazed his side. As many as four were discharged against his person, though there is no distinct evidence, except as to Duncan McRa, (who was absent,) of any having fired at all, though there were at least four discharges of fire-arms heard in rapid succession. When the unfortunate deceased was felled to the earth, and lying prostrate on the ground, and the only two persons, Nettles and Crowell, who were supposed to have some sympathy with the deceased, were forcibly driven ofi) Duncan McRa asked deceased 'if he knew who shot him. No reply was given. McRa replied, I did it; and he intended to finish him, and clubbed his gun, and went to work at it,’ and with the gun thus clubbed, fallen and unresisting, the deceased was bruised and mangled from ihe crown of his head to the soles of his feet, and no voice was raised in his behalf, and no hand appeared to stay the violence.
    
      “ With regard to the second ground, I said to the jury, that if one was present when a murder or other felony was committed, it did not necessarily make him a principal; and, if the parties intended to commit no unlawful act, such as did not participate were not responsible for the act of the others. The jury were at liberty to have found some of the party not guilty, but unfortunately the evidence too clearly implicated all.”
    Defendants appealed, and now moved this Court for a new trial, on the grounds:
    1. That his Honor omitted to explain to the jury the distinctions between the different kinds of homicide, and did not charge them that, in any view of the testimony, the defendants might be guilty only of manslaughter.
    
      (a) Tlie Reporter deems it unnecessary to publish tlie evidence. So much of it as is necessary to a full understanding of the point on which a new trial was granted is contained in the opinion delivered by the Chief Justice.
    2. Because his Honor did not instruct the jury that they might distinguish between the different parties as to the degrees of their guilt, but left them, in his charge, no alternative but to convict all or acquit all.
    3. Because the evidence was, that Powell Kirkland and McEa Kirkland, two of the defendants, had been in the custody of the United States forces on this charge, and by them discharged, and were not subject to be tried by this Court.
    
      Kershaw, DePass, for appellants.
    
      Fair, solicitor, contra.
   The opinion of the Court was delivered by

Dunkin, C. J.

When the report of the presiding Judge is considered, in connection with the first ground of appeal, this Court understands the charge to have been that, in any view which he took, or which the jury could legally take, of the evidence, the defendants were either guilty of the crime of murder or of no offence.

In Mr. Archbold’s Treatise on Criminal Law, it is said to be the duty of the Judge, in a case of homicide, to explain the law to the jury, leaving to them the exclusive decision as to the truth or falsehood of the facts proved.” Again, if there be any doubt as to the grade of the offence, it is the duty of the Court clearly to define the several grades of homicide, and leave it to the jury to find, from the evidence, of what particular grade the defendant is guilty. And it has been held to be error in the Court to omit to charge the jury fully on the legal effect of the evidence tending to determine the character or degree of the defendant’s guilt.” “But the Court, in charging the jury on a trial for murder, cannot be required to suppose a state of facts of which there is no evidence.” See Archbold’s Crim. Pl. & Pr., p. 918, and notes with cases there cited.

If there, was no evidence in this cause which, if believed, would have warranted the jury in mitigating the offence of the prisoners to the crime of manslaughter, then the charge of the presiding Judge is obnoxious to no just exception. Such was manifestly his own deliberate conviction from the testimony. It becomes the duty of this Court, before passing judgment on this ground of appeal, to analyze so much of the evidence as is supposed to present a case of extenuation. The prisoners, a mother and her two sons, were near relatives of the deceased. Some irritation and ill-feeling had been for some time engendered between them, arising from causes detailed in the evidence. On the evening of the fatal catastrophe, 1 June, 1865, Nettles (the principal witness for the prosecution) stated, among other things, that he, with the deceased and Crowell, were in the negro street of the plantation; when they got to the plantation, deceased (James Kirkland) took a seat and said, Let us take a drink. About dark witness heard something like a lady’s dress rattle; looked round and saw Mrs. Kirkland with a club; she struck deceased: he was sitting down; they then clinched; he (witness) told Mrs. K. to desist; the rest of the prisoners then came up, &c.” The party came together after Mrs. Kirkland; after she and deceased had clinched, I asked her to let me talk to her.” Mrs. Kirkland and James Kirkland both fell together after the firing — were clinched.”

Crowell’s account is partly this: that “ he was about fifty yards off when he heard a voice — thought it was that of Powell Kirkland; next heard a female voice, less than a minute after; Powell could not have been more than fifteen or twenty steps off from the party; Mrs. Kirkland said, What did you beat my child for ?” Again: “ Mrs. Kirkland and James Kirkland were on their feet, grasped together, and fell together.” In his examination-in-chief, he had said Powell Kirkland said, “ Gro for Jim Kirkland; the voice of the woman was the next thing he heard; then the sound of the scuffle and report of the gun; went back; saw Mrs. K. and J. K. in grips; witness released Mrs. Kirkland from the hold of Mr. Kirkland.”

Powell Kirkland (one of the prisoners) testified that he was employed-all day on 1st June, with his ox-cart; that on the dam, about six hundred yards from the house, he received a note from James Kirkland (the deceased) to meet him at sundown at the plantation; that he went to the plantation in the evening, accompanied a part of the way by the other prisoners and Duncan McRa; witness’s mother and himself went to the negro-quarter; he walked up with his mother to where James Kirkland was sitting with Nettles; Kirkland was sitting with a gun across his lap, and a bottle of whiskey between them; his mother walked up and spoke to him in a civil manner, which he returned abruptly; she then said “he had whipped her son a few days ago, and now sent for another to whip him. Deceased replied he had whipped him, and would whip him again; then got up with his gun in both hands; his mother then started up to him; then his gun fired ; she ran up to him and they closed; she called to Nettles to loose James Kirkland from her; witness attempted to shoot Kirkland; Nettles seized the gun; they scuffled, and fell over a stump; witness got away, and advanced towards James Kirkland, who was still hold of his mother; attempted to shoot him again, but missed, &c.” Next morning after the killing of James Kirkland, the prisoners, Powell Kirkland and McRa Kirkland, with Duncan McRa, started for the military post at Columbia, and surrendered themselves to the authorities.

Such are the portions of the testimony on which the counsel for the prisoners rely in support of the first ground of appeal. "What part of it the jury may have believed, and what part they may bave discarded from their consideration as unworthy of credit, this Court may not inquire. It was exclusively for them to determine. But if the jury believed the witnesses, and inferred from their testimony that there was no preconcert to take the life of the deceased, that there was no preconcert or purpose to do him bodily harm, but that the prisoner, Margaret Kirkland, already irritated (with or without cause) against the deceased, and inflamed to anger by hearing that he had “frailed” one of her sons and had, that day, sent for another to whip him, determined to go to him, and, if he admitted the charge, chastise him with that " unruly member ” said to be “full of all evil, and which no man can tame,” and which her sex are said sometimes to use with singular severity and effect — that, being rendered more indignant by the manner in which she was met, a scuffle ensued — her sons interfered — and death followed — if the jury believed all this, (and the Court have no warrant for assuming that it may not have been believed,) they would have violated no rule of law, by reducing the offence of the prisoners to the crime of manslaughter. The Court is under painful misgivings that,- regarding the charge of the presiding Judge, the jury may not have considered themselves authorized to take this view of the transaction and find their verdict accordingly — that, in the eye of the law, as expounded by the Judge, the prisoners were guilty of “murder, or of no offence.” This Court is of opinion, that an additional alternative should have been presented for their consideration and decision. Under these circumstances, and responding to the humane wish of the presiding magistrate, as expressed in his report, this Court has determined that it is due to the administration of penal justice, to submit the case to the examination of another jury ; and the motion for a new trial is granted.

Wardlaw and Inglis, J. J., concurred.

Motion granted.  