
    
      The State vs. Elias Ford.
    
    1. Where, on the trial of an indictment for murder, the facts proved show, on tire part of the prisoner, a deep and settled hatred towards the deceased, mixed up with a recent combat, the difficulty is to assign the homicide to its proper cause, to decide -whether it was committed under the sole influence of passion justly excited, or whether it was the carrying into effect of a settled and deliberate purpose.
    2. In such case there is no rule, and can be none, other than that Are jury must draw their conclusions from all Are facts of the case, relying upon legal presumptions, so far as these are applicable to Aie case.
    
      Before Evans, J., Kershaw, Fall Term, 1842.
    The prisoner was tried and found guilty of murder. The facts, as detailed by the witnesses, were as follows: On the 11 th of June last, the body of John Pitts was found lying within a small potato patch, near to the kitchen of Ford. None of the witnesses for the State saw it until some time after he was dead. It was lying rather across the potato beds, which had been nearly levelled by the digging of the potatoes. It was lying on the right side, with the right arm stretched forward, the left arm extended forward, and lying on the right, and his hat lying on the arm. There was no appearance of any struggling, or of the hands or feet having been moved after the body was stretched on the.ground. The body was dead. On examination it was found that sixteen buck-shot had entered the body, without passing through. A large hole was found near the navel, and a corresponding one within an inch of the back bone, which the witnesses thought were made by a large bullet passing, entirely through the body, breaking, as one witness thought, the back bone. Of the shot, eight had entered near the groin — above those, there was a space of about three inches, in which no shot had entered — above this, eight others had entered, and the bullet hole was a little higher up. There were three shot holes in the fence which divided the potato patch from the road, about the height of the space above mentioned on the body, wherein no shot had entered, leading, as several of the witnesses seemed to think, (and as was argued for the State,) to the conclusion that Pitts must have been on the outside of the fence when he was shot. On the right side, upon which the body was lying, a small quantity of blood was found, on the left side was found a large quantity, one witness said ten times as much as on the right, and another that it looked as if nearly all his blood had run out, whilst he lay on the left side. It was mixed with sand, and crusted on the outside of his clothes one fourth of an inch thick. Ford admitted to the magistrate and the inquest that he had killed Pitts. All the witnesses agreed in representing Pitts as a quiet, peaceable and well behaved man, and esteemed by his neighbors. He and Ford were neighbors. Pitts was a much stouter man than Ford. They had never had a disagreement in public, except, as one witness said, they had, (as he understood,) quarrelled in Camden at the spring court. But from some cause, it appeared from the testimony that Ford’s feelings towards Pitts were of an unfriendly character. Samuel S. Murchison said that in the spring of 1841, he and Ford were about to start into a field to shoot birds, when Pitts came up; he spoke and shook hands with several of the company. When they got into the field, Ford asked him if he had seen that Pitts did not shake hands. with him, (Ford.) He said " the black son-of-a-bitch knows better than to offer me his hand. If he had, I would have given him the contents of my gunand swore, with an oath, that if ever Pitts had the assurance to offer him his hand he would kill him. He assigned no reason for this threat.
    
      
      JVeil Martin said that not very long before Pitts was shot, he heard Ford say he would kill Pitts, if it took him twenty years to do it. Ford said, as he was passing along the road, he saw Pitts standing for a deer. He (Ford) drew up his gun and cocked her, to shoot him, but he desisted from it, because some of the drivers might see him do it; afterwards his mind changed, and if he had been back again, he would have done it. This was the same summer Pitts was killed. At another time, Ford said that when he heard Pitts calling his hogs in the morning, he had a great mind to take his gun and go and shoot him. Has heard these threats and declarations from Ford, both when he was drunk and when he was sober. The reason assigned was, that Pitts was a proud foppish fellow, and brushed by him without speaking to him; said he did not like him.
    
      Findlay Me Caskill said he and Pitts were hunting deer early in,the morning of the day on which Pitts was killed; Pitts was driving and he was standing. He heard some one coming, talking very loud; when he came near, discovered it was Ford, with his little son and a cart. Ford said, “ Is that Pitt’s dog V’ He swore he would kill the first man he met. Witness then rose up, and asked him what he meant'? Ford replied, he had nothing against him. Ford asked if that was that damned Pitts that was hallooing'? Witness told him it was. Ford swore he would kill him the first time he saw him, and rode towards where Pitts was. McCaskill followed him. Ford called Pitts, but received no answer. Ford then swore he would kill him, and if he could not do it with his gun, he would cut his liver out with a dirk-knife. McCaskill persuaded Ford to go home, and went with him. From thence he returned to Pitts’s house. Pitts inquired why he had hallooed 1 Told him it was Ford; told Pitts that Ford wanted to see him. Did not tell him of the threats; intended to do it that day, when they were fishing. Pitts replied, he would see Ford some time. Ford had been drinking; had his gun; and when he returned home laid it up in the kitchen. Each of them took a dram. After breakfast he and Pitts lay down in the piazza, and McCaskill fell asleep; when he awoke Pitts was gone, and he saw him no more alive. Ford said Pitts was a haughty, proud fellow, and would not speak to him when he met him. When he saw Ford in the morning, he had a red place on his cheek, and his mouth was bruised. When he saw him again, after Pitts was killed, saw no other wounds or bruises, but a cut on the head, which looked as if he might have fallen against some sharp point, such as the corner of a table. This witness said he had owned the gun with which Ford shot Pitts. The usual load was sixteen buckshot; she shot very close. At twenty steps all the shot would be in a space the size of a hat; and at ten steps, within the size of a man’s hand. The character of this witness was impeached. One witness said he would not believe him; another that his character was not good; several others said they would believe him; they had never heard any thing against him, except that he would romance, and tell large stories about his exploits in hunting and fishing.
    On the part of the prisoner two witnesses were examined, who said they were present, and saw what occurred when Pitts was killed. These were: Mrs. Brasington, the mother-in-law of the prisoner, who lived with him, and was said to be dependant on him, and Elizabeth Ford, his daughter. Two of the jury said that, many years ago, Mrs. Brasington lived in Camden, and had a very good character. She was very old and feeble, and there was some difficulty in understanding her. The other witness was a young woman, apparently about 15 years old. Mrs. Brasington said Pitts came to the fence and asked for Ford. He was told Ford had gone to Young’s, and he rode off in that direction. Some time after Pitts returned and called Ford. Pitts got down, tied his horse, and came to the fence. Ford went out to him; soon after, she saw them fighting; Ford was on the inside, and Pitts outside the fence. In the fight, Pitts got over and caught Ford’s leg, and tried to throw him over the fence; Pitts threw him on his back and stamped him; he struck. Ford two hard blows on the side of his head, as he was getting up. Ford said, “My God! do you intend to murder me in my own yard'?” Ford started to the kitchen, and Pitts cried out, Come back, I have not done with you yet.” Pitts followed him, and struck him two or three hard blows as he went. Pitts returned to the fence and got his stick, and came towards the kitchen. Ford came out of the kitchen with his gun, and Pitts stopped and put his stick down on the side of him; about three, four, or five minutes after, she heard the gun. Pitts was three or four steps from the fence when he was shot. A quarter of an hour after, Ford came into the house and asked for clean clothes; he was bloody, his collar was torn open, and his shirt torn down the back and arms, there was blood on his hand, and he spit up blood. On the cross-examination, she said Pitts had been standing still four minutes before Ford came out with his gun.
    
      Elixabeth Ford said that Ford, with little John, his son, went out early in the morning to haul a load of lightwood to burn coal. As was his custom, he carried his gun; when he came back, M’Caskill was with him. They drank 3 or 4 drams — M’Caskill went away, saying he would be back directly,, to go a fishing; after breakfast her father went to Young’s; about half an hour after, Pitts rode up and asked for her father; she told him he was gone to Young’s; her father returned in one hour and a half, and Pitts came half an hour after; he called Ford out'to the fence; said something, which she did not understand, and before Ford could answer, Pitts caught him by the top of his head, drew him down on the fence, and began to beat him; her father slipped down, and Pitts drew him up, and swore he meant to beat his life out of him; her father slipped down again, and Pitts tried to draw him over, the fence, but could not; Pitts then got over, himself, and threw Ford down, put one foot on .his arm, and stampéd him three times. They scuffled; Ford got up and said, “ do you mean to murder me in my own yard!” Ford went towards the kitchen, Pitts called him to come back, said he was not half done with him. Pitts went back to the fence and got his stick; he advanced about two steps and put his stick down first, before the gun fired; Pitts fell, he did not struggle much; he took his hat off, and put it down, but noton his arm; he fell on his right side, but turned over after he fell. The stick spoken of by the witnesses was described as a cedar stick. It was exhibited in court; it was a little larger than a man’s thumb; had a buck-horn head, with a prong, and was not apparently a weapon capable of inflicting any serious injury. Pitts had not used it in the fight. The only confirmation which the evidence afforded of the account given by these two last witnesses, was the testimony of Dr. DeLeon, who said he saw Ford the day after, when he was brought to the gaol; he had a bruise on the left cheek, and a bruise on the side. The place on the cheek was circular, and looked as if it might have been done with a shoe. There was a bruise on the ear, and a slight cut on the head and cheek. They appeared to be recent wounds, as if inflicted within forty-eight hours.
    These witnesses were, in some degree, contradicted by the facts herein before stated, and by Mr. Murchison, who said Mrs. Brasington told, him that Pitts followed Ford near to the kitchen door, and stamped him in the tomatoes patch ; he examined the place, and found no appearance indicating any such thing; the tomatoes were not mashed down. This witness saw the bruise on the face, it looked as if done the day before. Dr. Reynolds said if the back-bone had been broken, Pitts could not have turned over after, and would hardly think it possible Pitts could have turned over after receiving such a wound.
    The distance from the kitchen to the fence was estimated, by the witnesses generally, to be from ten to fifteen steps; the body was lying about three steps from the fence, making about eleven steps from the kitchen to the body. And the witnesses in general were of opinion that, at that distance, the shot would have been found within a smaller space. Three had missed the body entirely, and were found in the rail. No witness stated how far from each other these shot were, nor how deep they were buried in the rail; but said they knew they were shot, because they saw the lead. Pitts was a much larger man than Ford; was a man much younger, and weighed 165 or 170 pounds. The witness, Murchison, said it looked as if nearly all his blood had run out while he lay on his left side, and all the witnesses for the State agreed in saying there was no appearance on the ground of a fight or scuffle.
    It was stated by Elizabeth Ford, that before Pitts was dead, she was sent by her mother after Young, who lived in the neighborhood. Young and Xngrem were there before the others, who were examined, but neither of them were sworn on the trial.
    The foregoing statement embodies all the evidence given in the case, except something about a splinter found in Pitt’s breeches, which the presiding Judge did not consider as authorizing any inference against the prisoner, although some of the witnesses seemed to think it an important fact. The case was presented, in his Honor’s charge, in two points of view:
    1. Supposing the account given by the prisoner’s witnesses to be true, and connecting with it the threats as proved by Samuel Murchison and Martin, who were unimpeached witnesses, what was the legal character of the offence'! His Honor said to the jury that he could not discover in the testimony any thing which would reduce the crime below manslaughter; that if the account given by the witnesses for the prisoner was true, it was the common case of manslaughter, arising out of a sudden affray, unless the jury believed that Ford had provoked Pitts to strike him, or that the killing was to be referred to the old grudge, and not to the recent provocation. The legal principles involved in this part of the case were illustrated by the Court, by quoting and commenting on Mason's case, Snow's case, and Maddy's case.
    2. If the jury could not confide in these witnesses, but believed, as was argued, that Pitts was outside of the fence when shot, and had been brought and laid where his body was found, it was the common case where one having malice against another kills him ; the killing is to be assigned to the malice, in the absence of any satisfactory proof that it was in self-defence, or arose out of a sudden and adequate provocation:
    The prisoner appealed, and moved to set aside the verdict, and for a new trial, on the following grounds :
    1. Because the prisoner was surprised by evidence introduced by the State, which could not be foreseen by him, and, from its peculiar character, could be rebutted only by facts to be made for that purpose subsequent to a knowledge of its existence, and which, had he foreseen it, the prisoner could have proved to be entirely false at his trial.
    2. Because, from the iacts and circumstances established • by the evidence, the offence of the «prisoner, in law, cannot exceed manslaughter.
    3. Because his Honor charged the jury -that, if the' account of the killing given by the witnesses for the prisoner was true, they might, nevertheless, refer the killing to the old grudge, and convict him of murder.
    4. Because his Honor charged the jury that, if they believed the deceased was outside of the fence wlien the prisoner shot him,' and had been brought and laid wheré.his body was found, the offence of the prisoner was murder.
    5. Because his Honor charged the jury that there was no evidence to corroborate the account given by Mrs. Brasington and Elizabeth Ford, but Dr. DeLeon’s.
    6.- Because his Honor charged the . jury that there was no evidence which could reduce the killing below manslaughter.
    7. Because the verdict was against the evidence and law of the case.
    Mr. DeLeon for the motion.
    Mr. Anderson, for the State,
    contended that the malitia precogitata was made out by the antecedent threats. Provocation will not avail when there is proof of malice; 1 Russel, 639. Even if there was a fight, the case may be referred to the ancient grudge; ’ 1 Hale, P. C. 452.
    McIver, Solicitor, on same side,
    said the homicide was in legal contemplation murder, until the contrary appears. There was no proof that the deceased began the quarrel.
    Mr. Smart, in reply,
    argued that motions for a new trial were to be disposed, of according to the exercise of a legal discretion.
    On the 1st ground of the motion, he cited the following authorities: 1 Con. Rep. (Mill,) 143; 1 N. andMcC, 285; 2 McCord, 313; Harper’s Law Rep., 267; 2 Hill, 18; 2 Con. Rep'., (Mill,) 323.
    On the 2d ground: 1 Hawkins, chs. 8 and 12; 1 E. P. C., 224 and 294. Drunkeness may qualify the threats, 32 Eng. C. L. R., 750, 34 lb., 318; 4 Dallas, 125; 1 Haywood, 429.
    On the 3d ground: 1 E. P. C., 271-,2-,3.
   Curia, per

Evans, J.

The only question which seems to be necessary I should consider in this case is, whether there is any reason to believe the jury have mistaken the character of the prisoner’s crime, and found him guilty of murder when he has been guilty of no higher offence than manslaughter. The main matter to be ascertained was, whether the killing was of malice, or whether it was referable to a recent sufficient provocation, wholly distinct and unconnected with the hatred which the prisoner seems to have entertained towards the deceased.

In the discussion of these questions, it has been pressed upon us with great earnestness, that the evidence does not warrant the conclusion that Pitts was on the outside of the fence at the time he was shot, and that his dead body had been brought and laid where it was seen by the witnesses, as some of them seemed to suppose. I am free to admit that the facts, from which this inference is drawn, may be deceptive. The hole in the body, which was made, as the witnesses thought, by a bullet, may have been made by the three buckshot found in the rail; and the appearance on the ground of no traces of a struggle may have been effaced before the witnesses who were sworn arrived upon the ground. And if the verdict had nothing to sustain it but the supposition that Ford shot Pitts before the latter had entered the potato-patch, it might be that the prisoner should have another trial. Assuming the fact to be, that Pitts was without the fence, there can be no doubt of the correctness of the, verdict, because the evidence of the prisoner’s witnesses, being thus contradicted in a most important particular, would be entitled to no credit; and the case would stand as a homicide, committed by one entertaining malice, wholly unexplained, or mitigated, by any recent provocation. . It is very certain there were circumstances (however fallacious they may have been) detailed by the witnesses on the trial, and argued with earnestness to the jury, which might lead to that conclusion; and it may be, for any thing that I know or can know, that some of the jury may have been of that opinion; but it does not follow from this that the same jurors, in the absence of proof on this point, may not, as they might well have done, have come to the same result from the other facts of the case. A verdict is the aggregate opinion of all the jurors, but the process of reasoning by which each one attains to the conclusion is often as different and as dissimilar as their faces; and this applies to all the concerns of human life, where the same inference may be drawn from different arguments.

But supposing Pitts to have been within the fence, does it follow from thence that the prisoner is not guilty of murder 1 It is easy to give definitions, and to say that murder is a killing with malice; and that killing in sudden combat, or immediately after, and before the blood has had time to cool, is manslaughter, if done without malice. If a simple case of either of these descriptions be presented, we shall have but little difficulty in referring it to its proper class; but the case is very different when the facts proved show a deep and settled hatred, a burning desire of revenge mixed up with a recent combat. 'The difficulty in such case is to assign the homicide to its proper cause; to decide whether it was committed under the sole influence of passion justly excited, or whether it was the carrying into effect of a settled and deliberate purpose. In such case there is no rule, and can be none, other than that the jury must draw their conclusion from the facts of the case, relying upon legal presumptions so far as these are applicable to the case. These presumptions are nothing more than inferences, which the experience of mankind has proved to be legitimate deductions from facts; and hence we find it has grown into a sort of legal axiom, that if one person’s death be occasioned by the hand of another, he is presumed to have done it of malice, unless the prisoner can show from evidence, or satisfactory inference from the facts, that his offence is of a mitigated character; and if this inference against the prisoner be drawn from the fact of unexplained killing, how much more strongly does it arise when the existence of previous hatred, malice and ill-will are proved against him. 24 Eng. Com. Law Rep., 280.

How far the prisoner’s witnesses were to be believed, was a question for the jury. The position in which they stood to the prisoner, his power and influence over them, arising from their dependance upon him, might well excite some suspicion against their testimony; and when to this are added, that the condition of the prisoner afterwards is wholly irreconcileable with the enormous beating which these witnesses describe, and the state of excitement in which they must have been at witnessing such a scene, the jury might well have regarded their evidence as by no means satisfactory, in showing that the prisoner had acted on the recent provocation, and not on the ancient grudge. But even in cases of adequate provocation, it shall not avail if it was sought by the prisoner (1 Ea. 239) as a pretext to wreak his vengeance on the deceased. Pitts was a remarkably peaceable man. He had no knowledge, so far as we are informed, of Ford’s hostile spirit towards .him. If he had known of Ford’s threats, and especially of the occurrences of that morning, it is not likely he would have gone unarmed to the prisoner’s house, with a hostile purpose. McCaskill had told him Ford wished to see him. On the other hand, it is proved that, a year before, the prisoner told Murchison that if ever Pitts had the assurance to offer him his hand he would kill him. Not long before Pitts was killed, Ford told Martin he had deliberately cocked and presented his gun to kill Pitts, but he had desisted from the fear that some one might see. At another time, when Pitts was calling his hogs, Ford said he had a great mind to take his gun and go and slioot him. On the morning of the day on which Pitts was killed, the prisoner swore to McCaskill he would kill him the first time he saw him; and rode into the woods and called Pitts, with the apparent design of executing his threat. What is the natural inference from these facts 1 Why, that Pitts may have gone there with no hostile design, and that he was provoked by some taunt, or abuse of Ford, to the violence which he committed. This supposition is no way at variance with the evidence of the witnesses for the prisoner. Elizabeth Ford says, Pitts said something to her father which she did not hear, and before he could answer, Pitts caught him by the top of the head and commenced beating him. She was at the distance of near twenty steps, in the house. Ford’s back was towards her.

Is it not almost certain that Pitts’s violence was occasioned by some abusive language used to him by Ford, which the witness at that distance did not hear? .

Upon the whole, it seems to me the prisoner has utterly failed to mitigate his crime from the guilt of murder, by showing, either by evidence, or fair inference from the facts, that the homicide was the result-of the recent provocation. And he cannot complain if the jury believed him in earnest when he swore to McCaskill in the morning, that he would kill Pitts the first time he saw him; and that the subsequent killing was but the tíarrying out of that deliberate purpose.

The motion for a new trial must therefore be dismissed.

Richardson, O’Neall, Earle, Butlér, and Wardlaw, JJ., concurred.  