
    
      Slaughter v. The Commonwealth.
    December, 1841.
    [37 Am. Dec. 638.]
    Criminal Law — Murder or Manslaughter — Distinction.
    
    —Question whether, on circumstances of the case, homicide was murder in the second degree or manslaughter ?
    Same — Murder in Second Degree — Case at Bar. — S. having conceived and declared design to kill P. the parties met afterwards in front of S.’s own house, and a quarrel ensued, in which S. gave the first offence ; P. proposed a fight ; upon which S. retired for a very brief time into his house, armed himself with a loaded pistol which he concealed in his pocket, and instantly returned so armed to the scene of quarrel; then P. threw a brick bat at S. which did not hit him, but falling short of him broke, and a small fragment struck S.’s child, standing within his own door, who cried out; and S. hearing his child cry out, but without looking to see whether he was hurt or not. exclaimed, “he has killed my child and 1 will kill him,” advanced towards P.. deliberately aimed and fired the pistol at him then retreating with his face towards S. and the shot took effect and killed P. Upon trial of indictment against S., verdict guilty of murder in the second degree : ILk.U), the jury might well impute the killing to the previous malice, and not to the sudden provocation of P. ’s assault, and therefore the verdict was right.
    Same — Same -Same. — Two persons quarrel, and one throws a brick bat at the other, who has privately armed himself with a deadly weapon, and keeps it concealed, in expectation of the affray, and on such assault being made upon him, immediately draws forth the weapon and with it kills the assailant, though then retreating; jury finds this killing murder in the second degree : Held, upon these circumstances, even without proof of any previous malice, the verdict could not be disapproved.
    Petition for a writ of error to a judgment of the circuit superior court of Peters-burg. John Slaughter was there indicted for the murder of Joseph Pledge, tried, and convicted by the verdict of the jurj" of murder in the second degree, and the term of his imprisonment in the public jail and penitentiary was thereby ascertained to be eighteen years. Whereupon, he moved the court to set aside the verdict, and grant him a new trial, on the ground that the verdict was contrarj' to evidence.' The court overruled the motion; and at the '’‘'prisoner’s request, certified the following facts as proved in the case:
    On the 9th July 1840, Pledge, the deceased, who lived in the neighbourhood of Blandford (part of the town of Petersburg) rode to Blandford, and falling in conversation with one Jones there, asked him the news: Jones informed him that having understood that Slaughter, the prisoner, suspected him, Jones, of having thrown an anonymous letter into his yard, which had given him much offence, he had seen Slaughter, and acquitted himself of the charge, and that Slaughter suspected Pledge of being the author; whereupon, Pledge said, he would ride to Slaughter’s h.ouse and clear himself of the charge; and he rode in that direction. That Jones, hearing Slaughter rave out iri an angry voice, went to Slaughter’s house, to satisfy himself that Pledge had not exaggerated what he had told him, and found from the conversation that he had not. That Slaughter was then sitting in his chair on the side walk before his own door, and Pledge on his horse in the street near him, endeav-ouring to satisfy him that he was not the author of the offensive letter. That Slaughter told Pledge to go away; that he did not wish to have anything to do with him. That Pledge assured Slaughter that he had not written the letter, and took out his pocket book and asked Slaughter to compare his handwriting, which he offered to exhibit, with the letter, and he would be satisfied that he did not write it. Slaughter angrily told him, that if he would acknowledge himself the author, he would kill him; that he should not live to get off of his horse: Pledge then said, “Jack, you would not kill me, would you?” to which Slaughter answered, “yes, by God, you or any other man, if he were Jesus Christ or God Almighty, if he will only say that he wrote that letter.” Pledge then said, “if you, are not satisfied, and will go down to the river, I will give you what you want;” adding that he was not armed: Slaughter *did not offer to go. That Pledge then said to Slaughter, “I never take private advantages of any one;” Slaughter answered, “nor I neither;” and Pledge replied, “you don’t take private advantages!” That Pledge then rode off with his pocket book still in his hand, and Slaughter called him “a damn’d free negro mulatto looking son of a bitch.” That Pledge immediately dismounted, and asked a black boy to hold his horse, who refusing to do so, he walked across the street, fastened his bridle to the sill of a house that had been burnt, near a pile of bricks, picked up a half brick, and advanced a few feet towards Slaughter. That Slaughter, as Pledge was dismounting, ran into his house, and had returned, and was standing on the 'side walk near his own door, with his hands in the pockets of his pantaloons, when Pledge, at the distance of twenty-three yards, threw the brick bat at him, which struck the street about five feet from Slaughter’s feet and broke: some small fragments entered Slaughter’s door, where his son (a child) was standing, who cried out. That Slaughter immediately called out to one Williams (a boarder in his family, who was standing inside of the door) “take notice, he has killed my child, and God damn him, I will kill him;” then rushed towards Pledge, drew a pistol from his pocket, cocked it, advanced to within about twelve paces of Pledge, took deliberate aim at him, and fired: Slaughter then drew another pistol, but before he fired it, Pledge applied his hand to the inner side of his left thigh, and said, “gentlemen, he has shot me,” and fell. That after Pledge threw the brick bat, he advanced one or two .steps, with his hands holding the lappels of his coat, and said to Slaughter “shoot and welcome;” but as Slaughter advanced, Pledge retreated slowly, with his face towards Slaughter, still holding his lappels with his hands; and was so retreating slowly when he was shot. That the ball severed the femoral artery of Pledge, and he died in about half an hour. *One witness testified, that Pledge, after throwing the brick bat, picked up another, which he had in his right hand, holding his lappel; and as he-applied his left hand to his wound, his right hand fell and the brick dropped. A woman testified, that she was looking out of the window of her house, about sixty yards from the scene, and thought that something fell from Pledge’s right hand; and her two sons, one in his twelfth and the other in his thirteenth year, stated that they were distant bout sixty yards, and that Pledge picked o another brick, which dropped from his md; but many witnesses testified that they saw the whole scene, and saw no second brick. It appeared that Pledge was in good temper, and manifested no anger, till the words were uttered by Slaughter as he was riding off, “that he was a damned free negro mulatto looking son of a bitch;” that Slaughter was in a high state of passion from the time the subject of the anonymous letter was mentioned; and that his child was not wounded or seriously hurt, and he did not look at the child to see whether he was or not. By the evidence on the part of the prisoner, it appeared, that an anonymous letters had been, some nights before, thrown into his yard ; this letter was not produced at the trial; it was proved, that it had been burned by a member of his family, because he became violently excited whenever he saw it; it was in these words: “A. B. C. and fifty others give you notice, that you are to quit Blandford in twenty days, or you will be taken out and well dressed.” That Slaughter ’ had been, some years before, taken out and lynched. That he was of infamous character, and, on that account, great and almost universal prejudice existed against him. That for some nights before the homicide, he had slept in an upper room of his house, and had prepared a pair of small pocket pistols (with one of which he shot Pledge), a large pistol, and a scythe blade with the shank straightened, and a wood handle put to it, as a means *of de-fence against such an attempt. That on the day before the homicide, Williams (Slaughter’s boarder) dined with Pledge and his family, when the subject of the rumoured purpose to lynch Slaughter being mentioned, Pledge’s wife begged him to have nothing to do with it, and Pledge answered, “that she had his word that he would not, and he would keep it; that there were enough to do it without him, and if all failed, then he would step in:” and in the morning of the day on which Pledge was killed, Williams communicated this conversation to Slaughter, and advised him to be on his guard; but it did not appear, that Pledge knew that this communication had been made to Slaughter. That on the Sunday night before, Pledge said, that he and others would lynch Slaughter that night; and that he said, three days before, that he had a negro man, who, if he told him, would go into Slaughter’s house and bring him out; but he did not say he would make the negro man do it ; and it did not appear, that Slaughter knew of these remarks having been made by Pledge. It also appeared, by the commonwealth’s evidence, that on tuesday, two days before Pledge was killed, Slaughter being at the store of one Patterson, collecting some money, one Sykes approached the store with- a stick in his hand; that Slaughter drew two pistols, and presented them, telling -Sykes, if he approached nearer, he would shoot him; that Sykes got an axe, and Slaughter retreated, and as he went off said, “I will kill you and Joe Pledge (the deceased) and two or three other damned rascals in Blandford, and then I will be satisfied:” he believed Sykes to be concerned in a plot to lynch him. And he told Jones, the day before the homicide, that he believed Pledge wrote the anonymous letter which was thrown into his yard. And this being the state of facts appearing by the evidence, the prisoner excepted to the opinion of the court overruling his motion for a new trial.
    '*The court then passed sentence upon the prisoner according to the verdict. And now he presented a petition to this court praying a writ of error to the judgment.
    Collier, for the prisoner.
    The attorney general, for the commonwealth.
    
      
      Criminal Law- -Self-Deience.— Although the slayer provoked the combat, or produced the occasion, yet, if it was done without any felonious intent, the party may avail himself of the plea of self-defence. Hash v. Com., 88 Va. 194 13 S. E. Rep. 398. citing Slaughter's Case, 11 Leigh 681.
      
      Appellate Practice — Judgment of Lower Court— Reversal. — In Read v. Com., 32 Gratt. 943, Monotjrh, P.. in discussing the rules that govern the court in considering the judgment of the lower court, says, “I think this is clearly a case in which we ought not to reverse the judgment on the ground we have been considering. Por the rules which govern this court in such case, I refer to the following decisions: In civil cases, Ross v. Overton, 3 Call 309; Brugh v. Shanks, 5 Leigh 598: Mays v. Callison, 6 Leigh 230; Brown v. Handley, 7 Leigh 119 ; Mahon v. Johnston. 7 Leigh 317; Bell v. Alexander. 21 Gratt. 1, and Blosser v. Harshbarger. 21 Gratt. 314, and in criminal cases. Slaughter's Case, 11 Leigh 681; McCune's Case, 2 Rob. 771; Hill's Case. 2 Gratt. 591; McWhirt’s Case, 3 Gratt. 594; Grayson’s Case, 6 Gratt. 712; Vaiden’s Case, 12 Gratt. 717, and Bull’s Case, 14 Gratt. 613.”
    
   JOHNSTON, J.,

delivered the opinion of the court. The error complained of is the refusal of the circuit sujierior court to set aside the verdict, on the ground that it was contrary to the evidence; and this court is now called upon to review that decision upon the facts stated in the bill of exceptions.

The prisoner in his petition, and his counsel here in argument, contend, that the facts as stated in his bill of exceptions ■warranted a conviction only of manslaughter, and not of murder in the second degree ; and upon the correctness of this proposition depends the decision which this court is now called upon to make. The distinction between these two offences is too well established to admit of doubt in the present day. In the one, malice is a necessary ingredient; in the other, it is wanting. In the one, the crime is attributed to a wicked, depraved and malignant spirit; while in the other, it is imputed by the benignity of the law, to human infirmity. If for instance, death ensues from a sudden transport of passion or heat of blood, upon a reasonable provocation, and without malice, it is considered as amounting only to manslaughter. 1 Russ, on Crimes, 486. But the person relying upon the plea of provocation, must make out the circumstances of alleviation to the satisfaction of the jury, unless they arise out of the evidence adduced against him; as the presumption of law deems all homicide to be malicious, until the contrary appears. He must shew, that sufficient provocation had been given, and that the act or *blow which produced death was attributable to the passion of anger arising from that provocation. This doctrine is forcibly illustrated in the cases of the Queen v. Kirkham, 8 Carr. & Payne, 115, and of the King v. Thomas, 7 Id. 817; 34 Eng. C. L. Rep. 318; 32 Id. 751. In the former it is said, ‘ !If a person has received a blow, and in the consequent irritation, immediately inflicts a wound that occasions death, that will be manslaughter. But he shall not be allowed to make this blow a cloak for what he does; and, therefore, though there have been an actual quarrel, and the deceased shall have given a great number of blows, yet if the party inflict the wound, not in consequence of those blows, but in consequence of previous malice, all the blows would go for nothing.” In the latter, the judge says, “There is no doubt here, but a violent assault was committed; but the question is, whether the blow given by the prisoner was produced by the passion of anger excited by that assault?” And so in the case before us, we may say, the deceased committed a violent assault upon the prisoner in throwing the brick at him; but did ( the prisoner shoot him in consequence of the ungovernable passion excited by that assault? or did he seize upon it as an opportunity of gratifying his previous malice, and carrying into effect a preconceived design to take the life of the deceased? These were questions that belong to the jury to decide, and if the record contains testimony from which the jury might reasonably conclude, as they did, that the killing was the result of malice aforethought, then it would be an invasion of their province for this court to interfere and set aside their verdict. But if on the other hand, there were no evidence contained in the facts as certified (which constituted all the testimony in the case) from which this conclusion might be reasonably drawn, then, undoubtedly, it would be the duty of this court now, as it wqjild have been the duty of the court below, to set aside the verdict, and direct a new trial.

*'Without going into a minute detail of the evidence here, this court is of the opinion, after a careful examination of all the testimony stated in the bill of exceptions, that the jury were well justified in the verdict which they rendered against the prisoner. The evidence clearly shews, that he considered the deceased the author of the anonymous letter thrown into his yard, at the very sight of which he became so “violently excited,” that a member of his family threw it into the fire to prevent him from seeing it again: that two days before the fatal occurrence, he declared, “that he would kill a man named Sykes, and the deceased, and two or three other damn’d rascals in Blandford, and then would be satisfied;” and he told Jones, the day before the homicide, that he believed the deceased wrote the anonymous letter: and that he prepared the pistols, and a scythe blade, some nights previous to the homicide, as a means of defence against the attempts to lynch him threatened in the letter. These antecedent declarations and circumstances, coupled with the conduct of the prisoner when the deceased went to see him for the purpose of convincing him that he was not the author of the offensive letter; his refusal to listen to his explanation ; his violent manner and abusive language; fully authorized the jury in coming to the conclusion, that the deceased fell a victim to the malice and revenge entertained towards him by the prisoner, from the time the anonymous letter was first thrown into his yard.

But throwing out of view every thing that occurred anterior to the day on which the killing took place, and confining our consideration to what then occurred entirely, this court is of the opinion, that the facts proved make out a case of murder, and not of manslaughter only. “If, after an interchange of blows on equal terms, one of the parties on a sudden, and without any such intention at the commencement of the affray, snatches up a deadly weapon, and kills the party with it, such ^killing will be only manslaughter. But if a party, under colour of fighting upon equal terms, uses from the beginning of the contest a deadly weapon, without the knowledge of the other party or 11 if, at the beginning of the contest, he prepares a deadly weapon, so as to have the power of using it in some part of the contest, and uses it accordingly in the course of the combat, and kills the other party with such weapon, the killing, in both these cases, will be murder. ” 1 Russ, on Crimes 446. Now, the application of these principles to this case is easy and obvious. The prisoner at the beginning of the contest, so soon as he saw the deceased in the act of dismounting from his horse, ran into his house, and armed himself with a deadly weapon (as we are bound to infer from the evidence), returned, and placed himself on the side walk, with his hands in the pockets of his pantaloons. So soon as the deceased, who was at the distance ofi twenty-three yards, threw the brick bat at him, the prisoner “rushed” towards him, drew from his pocket a pistol, cocked it, advanced to within twelve paces of the deceased, took deliberate aim, and fired, while the deceased was retreating slowly with his face towards the prisoner; then drew forth another pistol, but before he fired that, the deceased fell, mortally wounded. Here, we have the preparation of the deadly weapon beforehand, the use of that weapon from the beginning, and the fatal fire given when his adversary was actually retreating. Surely, this was murder; and these facts would have justified the verdict, even if no previous malice had been proved.

Writ of error denied.  