Murder is a homicide committed with malice aforethought. Manslaughter, as far as this case renders a description necessary, is homicide committed under the influence of sudden passion, for the law pays such regard to human frailty as not to put a hasty and a deliberate act on the same footing, with regard to guilt. So, also, if a man be greatly provoked, as by pulling his nose, or other great indignity, and heimmediately kills the aggressor, this is manslaughter, and not murder. Manslaughter, therefore, on a sudden provocation, differs from excusable homicide, se defendendo, in this, that in the one case there is an apparent necessity, for self-preservation, to kill the aggressor; in the other, no necessity at all, being only a sudden act of revenge, and this is manslaughter. Place the wife and the prisoner in the same grade, as to the commencement of the quarrel and affray (and she certainly commenced it, and by her rudeness forfeited the protection due to her sex), and, had she died of the blow, the prisoner would have been guilty of manslaughter, and not murder. The husband then places himself in her situation, and commenced an attack on the prisoner, aided by Dunn; the prisoner retreats, and tells them to stand off, having the gun in his hands from the first; they approached so near as to get hold of the muzzle of the gun, and the prisoner discharges it and inflicts the mortal wound. If the foregoing definitions of murder and manslaughter be right, and they are taken *Page 187 from Justice Blackstone's Commentaries (and I think there cannot be a doubt of their correctness), this is a killing upon a sudden quarrel and to avoid great bodily harm; for, if we are to take the acts as evidence of the intent, the conduct of the deceased and Dunn show their object to have been to chastise and beat the prisoner, and he was not bound to submit to a whipping; he was (to use an expression of Beville) in a state of legal provocation, which did not justify or excuse the act, but, on account of human frailty, extenuated the homicide to manslaughter. (352) There is but one possible view by which the transaction can be made to be murder; it is this: the prisoner had inflicted an apparently dangerous wound; it was the duty of those present to arrest him, and it was his duty to submit, if required to do so. If this had been the intent of the deceased and Dunn, and they had so declared it, and acted in such a manner as to cause it to be believed, and, to avoid the arrest and not a beating, the mortal wound had been inflicted, it would have been murder and not manslaughter; but it was not put in this manner by the presiding judge. The jury were told that the evidence, if believed, proved the offense of murder, without any regard to the question, what was the object of the deceased and Dunn in pressing on the prisoner, and what, from their conduct, would a person placed in the prisoner's situation conclude to be their motives? I think the jury was improperly instructed, and that there should be a
New Trial.
Cited: S. v. Quick, 150 N.C. 824.