We do not think defendant's exceptions, to the reply of the court to the questions asked the court during the argument of the case to the jury, can be sustained. We do not know whether they are excepted to as being out of time or as being erroneous. But we do not think they can be sustained on either ground. If the exceptions are put on the question of time, it would seem they were made in response to questions addressed to the court by defendant's counsel. And it may fairly be inferred that the counsel for defendant wished to know the views of the court at that time, that he might the (1044) better know how to direct his argument, and that the court so understood him. And whether this was the object of counsel or not, it is a reasonable inference to be drawn from the questions, and we do not think defendant has any just ground for complaint. Nor do we think these exceptions can be sustained upon the ground of error in law, as in our opinion there was evidence in the case involving murder, manslaughter and excusable homicide.
It was admitted that the defendant killed the deceased David Butler with a pistol. This threw the burden on the defendant. The State then offered two witnesses, whose testimony tended to show previous threats and express malice on the part of defendant. And while these were denied by defendant, he offered evidence tending to show that after the alleged threats (which the State insisted showed express malice) the deceased and the prisoner had talked the matter of John Horn over, that prisoner had assured the deceased that he had nothing to do with that trouble, telling the deceased that they had always been friends, and that he did not want any trouble with the deceased. And the court *Page 610 in the case on appeal states that "no one testified that Henry Horn was not friendly with Butler on the day that Butler was killed, or that Henry Horn had ever done or said anything to show that he was unfriendly with Butler, except as it may appear as herein recited." Evidently referring to the testimony of Campbell and Gaddy. And defendant insisted that if it should be found by the jury that defendant had made the alleged threats, that it also appeared that he (defendant) had become reconciled and was friendly with the deceased on the day of the homicide; and asked the court to charge that the law (1045) inferred the killing was from the recent provocation. This the court declined to do. And upon this view of the case we think there was error.
We do not think courts and juries should give too much weight to threats — often made in a thoughtless, bragging manner, without any purpose of ever carrying them into execution, and sometimes made in the moment of passion, soon to pass away with the passion that produced them. But still they are competent and proper evidence, and as to what weight they shall have is a question for the jury, considered under proper instructions from the court and all the circumstances under which they were made. This evidence made it necessary to submit the question of murder to the jury.
But to remove this testimony from the case, it would seem that the offense would be reduced to manslaughter, as the provocation of defendant, seeing the deceased shoot down his brother, or seeing his brother and the deceased a few moments after the deceased had shot down defendant's brother, was very great. Therefore it became of the utmost importance in the trial that the court should properly charge and instruct the jury as to the law of previous threats tending to show express malice, as affected by an after reconciliation. This the court did not do. The court should have charged the jury that every question of fact necessary for the conviction of defendant and every question of fact necessary for defendant's defense, should be found, from the evidence in the case, to be true. That if the defendant did make the threats, as testified to by the witnesses for the State, then this would tend to show express malice on the part of the defendant. But if they should so find, then they should consider the evidence offered by the defendant tending to show a reconciliation on the part of the defendant, and that defendant after the threats was friendly with the (1046) deceased. And if they should find from the evidence that he was, then the law no longer attributed the killing to previous malice, but inferred it was from the new and sudden provocation. S. v.Barnwell, 80 N.C. 466. And if it was done under the new provocation, the defendant would not be guilty of murder but only of manslaughter. *Page 611 S. v. Hill, 20 N.C. 629; S. v. Ta-cha-na-tah, 64 N.C. 614; S. v. JacobJohnson, 47 N.C. 247; S. v. Matthews, 78 N.C. 523.
In this opinion we have not considered the question of self-defense as it was not necessary that we should do so, and merely mention it here to show that we have not considered it.
We notice his Honor (doubtless through inadvertence, as we find the same thing in other cases) in charging the jury uses the expression "believe" where we think he should have said, if you "find as a fact from the evidence." We merely mention this, as we see it in this case, and in other cases. But in this opinion, we have laid no stress upon this matter, and do not consider it in making up our judgment.
There is error in the matter pointed out in this opinion, for which defendant is entitled to a
New Trial.
Cited: S. v. Byrd, 121 N.C. 686.
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