
    The State v. Yarbrough.
    From Franklin.
    To an indictment for an assault in tlie Superior Court, the Defendant pleaded in abatement, that a prior indictment was still pending against him in the County Court for the same cause: held, that the plea is good; for the Courts have concurrent jurisdiction, and to avoid the mischief of having two indictments carried on for the same cause against the same person, the jurisdiction shall attach in the County Court by the prior finding of the bill, and shall exclude that of the Superior Court, except in its appellate capacity : unless it be shewn that the first is carried on by fraud and covin ; which may be replied by the State to such a plea.
    There is no method by which an indictment can be removed from the County Court to the Superior Court for trial, but by appeal, after a final decision.
    Where upon words of reproach on both sides between Y. and B. the latter approached the former, and struck him a violent blow with his fist, which staggered him, and the company separated them, and were taking B. away, when Y. within one minute, advanced upon B. who extended his arm to take hold of him, and Y. immediately stabbed him with a knife, which he had not shewn'before: Held, that if death had ensued, it would not be murder, but manslaughter, notwithstanding the separation for a minute and the weapon; for the wrath of the accused, kindled in the highest degree by the blow, would not reasonably subside within that period, and, in such case, the instrument makes no difference.
    
      .Necessity distinguishes between manslaughter and excusable homicide, and not between the f rmer and murder1. Its absence is common to both murder and manslaughter.
    This was an indictment, containing two counts: the first for an assault on one Benton, with intent to kill and murder ¿ and the second for an assault only. The Defendant appearing, pleaded in abatement, that before the filing and finding of this indictment, he was indicted in the Court of Pleas and Quarter Sessions for Franklin county for the same cause and acts upon which this indictment is founded, and that said indictment is still pending, and that the County Court hath jurisdiction of the case.
    
      To this plea, the Attorney-General entered a general demurrer, in which the Defendant joined; and, upon argument, the Court sustained the demurrer. The Defeu-dant, being allowed to plead over, pleaded “ not guilty,” and, on issue joined, the case came on for trial at October, 1819.
    The prosecutor and several witnesses stated, that the Defendant came up in front of the prosecutor in a menacing manner, but with his hands in his breeches pockets, when, the prosecutor raised his hand to push him back, and the Defendant immediately stabbed him with a knife in a vital part of the body, and that the wound was likely to produce death.
    One W. Taylor, at whose house the affair happened, proved on behalf of the Defendant, that Benton and a brother of Yarbrough were in conversation relative to some part of the Defendant’s conduct, who was then absent, but came up soon afterwards, and the brother then said to the prosecutor, ‘e Now tell him to his face, what you have “ to say of him.” Yarbrough seated himself in a chair in the porch, where the company was, and remarked to Ben-ion, that there was no occasion for casting flouts on him, and that he wished for peace. They continued to talk, until words of reproach were used on both sides, when Yarbrough rose and stood up, and Benton came up to him, and struck him a violent blow with his fist, which staggered him, though it did not knock him down. The company immediately interfered, separated them, and were attempting to carry Benton into an adjoining room, when Yarbrough advanced up, and the prosecutor extended his arm to take hold of him, and immediately the traverser stabbed him. The witness further said, that he did not see nor hear any thing of a knife until the stab was given j and that it was about one minute after the blow had been given by Benton.
    
    The counsel for Yarbrough moved the Court to instruct the Jury, that, according to the evidence of Taylpr, if he-lievcd, if (loath had ensued, it would have been manslaughter only. But the Court refused to give such in-stniotion ; and charged the Jury that it would have been murder, inasmuch as the parties were then separated, and there was then no necessity on the part of Yarbrough to stab the prosecutor. Under this instruction, the Jury found the Defendant guilty. He moved for a new trial upon the score of misdirection, which was refused, and he appealed to this Court.
    
      Seawdl and Gaston, for tiie Appellant.
    The question upon the plea in abatement and demurrer is now open ; for this Court must look into the whole record, and give such judgment as the Superior Court ought. The plea ought to have been sustained. It is a maxim of common, right that no man shall be twice vexed for the same cause; and if a second action be brought, pending the first, it shall be abated upon plea. There is nothing in the nature of criminal prosecutions which renders the evil of a double prosecution more tolerable than in civil controversies; but decidedly the reverse. It is true, that in England, it. is not a good plea, that another indictment is pending for the same cause; but the reason of that is, that there are no conflicting jurisdictions, and all the evils that might result from them, or from double indictments, are remedied by easier and more summary methods than by plea. The Court of King’s Bench is the Court of universal criminal jurisdiction, and there is none other; for although indictments may be found before other tribunals, they may all be removed into that Court by certiorari. And when the case is there, although no plea of auterfois ,arraign will be allowed, the Court will take care that justice shall be done, and the Defendant not unnecessarily harrassed, and v> ill quash the first indictment before the Defendant will be put to plead on the second. And tin? same rule was adopted afterwards in Rex v. Webb;
      
       and moreover the Court would not allow the ' prosecutor to proceed upon the second indictment at all, unless upon the condition that it should assume the place oT the former, and every thing stand in slain quo, as though the one were merely an amendment of the other. But here the indictments are. pending in Courts of concurrent jurisdiction, and the, Superior Court cannot issue a -fiiandamhs to the County Court, or otherwise control its proceedings, until a final decision shall have taken place, and the case be removed by appeal. Thus, if the plea he overruled, two prosecutions for one and the same thing may he going on at one and the same time; and if nothing short of an acquittal or conviction can be pleaded, the Defendant must incur double costs, enter into double recognizances, and run a double- risk of imprisonin’'lit before conviction. There is no other mode of relief than by pleading in abatement, for he cannot plead an acquittal or conviction after “ not “ guilty” — they are pleas in abatement, and must be before plea in chief. But, as the jurisdictions are concurrent, the cognizance of the cause by one ought surely to prevent the interference of the other. Otherwise there will be perpetually an indecent scramble for jurisdiction : for it would certainly be highly indecorous to see the Judges of the. one Court and the Magistrates of the other running a rare in the exercise of their jurisdiction. Hence, in ail cases of concurrent jurisdiction, the jurisdiction, attaches and becomes exclusive in him who takes the first step — not him who can try first. The objection to this plea can only be founded on a suspicion of the County Court: but the Legislature hath constituted that a competent tribunal, and it is not for any other authority to gainsay it.
    
      The Mamey-General and Williams, on the other side.—
    Nothing short of a complete acquittal or conviction upon. a sufficient indictment is a good plea. So in Withipole’s case,
       p- was iie](l, that “ miter fois arraign” is no plea; for, before he is acquitted or convicted, he may be arraigned upon another indictment. And the case of Regina v. Gfoddard is express that it is not a good plea in abatement, that another indictment is pending for the same cause. So here the plea is, that the indictment in the County Court was pending- — it does net even state that (he accused liad been arraigned on it or pleaded. The criminal justice of the country may and will bo evaded, if this plea be held good. Persons guilty of high misdemeanors will procure their friends to commence a prosecution in the inferior Court, where it is notorious that the most hardened and violent offenders are suffered to get off with very inadequate punishment. None of the inconveniences pointed out on the other side can happen j because the Court, upon motion and a proper case, will stay the proceedings upon the second indictment until the prosecutor can move the Court below to quash tiie indictment pending there, or apply to the Attorney for the State to order a nolle prosequi. On the other hand, there will be a great e\ il $ for the Superior Court will he defrauded of its whole jurisdiction over misdemeanors.
    The counsel for the accused did not say any thing upon the other question •, and the Attorney-General declined arguing it.
    
      
       Spurrier's case, 5 Rep. 61.
    
    
      
      
        4 El. Com. 265, 321»
    
    
      
       Foster Tr. 106.
    
    
      
       3 Bar. Rep. 1468.
    
    
      
       1 Chitty, 355, 436.
    
    
      
       Rex v, Sairbury, 4 T. R. 451.
    
    
      
       Vaux’s case, 4 Co. Rep. 45.
    
    
      
       Cro. Car. 147.
    
    
      
       2 Ld. Raym. 920.
    
   Taylor, Chief-Justice,

delivered the opinion of the Court, which was composed of himself, Haii and Mur,~ THEY :

The first question relates to the validity of the plea, which is demurred to. It must be assumed upon the pleading, that the, first indictment was prosecuted in good faith, and with the view of bringing the Defendant to trial. There is truth-in the remark, made by the counsel for tiie State, that public justice may be sometimes evaded by an offender procuring a friend to indict him in the County Court, where a trivial punishment would secure' him from another prosecution in the Superior Court. While tiie first indictment is pending, and before judgment, the evil arising from a fraudulent prosecution may, in general, be obviated by replying that the indictment was prosecuted by fraud and covin between the Prosecutor and the Defendant, and the verification of this fact before the Jury would destroy the validity of the pica.

It is a familiar rule of law, that a man cannot bring a second action fqr the same cause,-lor which be has a prior action depending. This extends to qui tain actions, where the Plaintiffs are different, If the cause of the actions is the same — to informations qui iam, and to indictments to recover forfeitures on penal statutes; but informations and indictments for crimes are excepted from it. That the rule should not extend to those modes of prosecution, the consequences of which are most grievous to the accused, seems at first view to be unju.vt, and in conflict with the maxim, Nemo his debel vexrsi, si consiet curia-quod sil -pro una et eadem cause,. This anomaly in too English law is only to be, accounted for by the extensive, criminal jurisdiction of tbo King's ííeuch; for it was formerly thought that no acquittal in any other Cour‘-could be effectually pleaded in bar to a prosecution in the King’s Bench. Info that Court indictments may be removed from all inferior Courts by writ of certioraii, and are thus under its control for all the- purposes of justice.

If there, he any criminal Courts of local and independent jurisdiction, from which an indictment could not be. removed into the King's E<-i:;'b, that Court would, I apprehend, he. compelled by the- reason and the rule to sustain such a plea as the, one now reliwl on. This may be in ferred from a passage in Hawkins: “ if an appeal be “ commenced before Justices in Eyre, and afterwards “ another appeal be brought in King’s Bench, it w ill be a “good plea, that another appeal is depending,* which shews that the King’s Bend) ought not, without a ccr- “ iiorari, to intermeddle in an appeal whereof another “ Court is legally possessed before; and the reason seems to be the same as to indictments.”

The County and Superior Courts of this State have concurrent jurisdiction of the offence charged in this indictment| and where the jurisdiction of the former attaches, if must be exercised throughout, before the Superior Court can take cognizance of the case, and then it can act only m its appellate capacity. There is no method by which an indictment can be removed from the County to the Superior Court, before trial j so that if a party were precluded from pleading f isc pendency of another indictment, he might be not only bis ‘oexaCus, but bis punitus, pro una et eadetn causa. This reason is sufficient to shew that the plea ought to be sustained.

With respect to the exception taken to the. charge of the Judge in relation to Taylor’s testimony, it seems to me to be incontrovertible, that if death had ensued, it would have been a plain case of manslaughter. The Defendant received from the prosecutor a blow so violent as to stagger him ,* and in a minute afterwards gave the wound. We deem such a provocation a legal one,* and the law presumes that it may kindle wrath in the highest degree, so that a person is rather to be. considered as acting under the suspension of reason, than from the, impulse of malice. The homicide would have been not the less extenuated, because he used a deadly weapon, since- ibe passion, excited by an attack on his person, was continued to the moment of the act.

The- Jury were incorrectly instructed, when they were told, that it would have been murder, because there was m necessity on the part of the Defendant to do what lie did. The task was to distinguish between murder and manslaughter; but the absence of necessity is common to both of them. Had such necessity existed, it would not lm\e amounted even to manslaughter. In considering whether a homicide amounts to manslaughter or is ex- ' . disable, the inquiry as to the necessity ot it would have been all important; and had the Judge been called on to instruct the Jury, that it would have been no more than, excusable homicide, he might properly have refused to give, such instruction, and for the very same reason tiiat is given for calling it murder.

I am consequently of opinion, that upon botli grounds the judgment must be reversed; and the demurrer to the plea iiyfibatement overruled, and the plea sustained.

So the plea was sustained.  