delivered the opinion of the Court, which was composed of himself, Hall and Murphey.
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 (83) and with the view of bringing the defendant to trial. There is truth in the remark made by the counsel for the 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 the 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 plea.
It is a familiar rule of law that a man cannot bring a second action for the same cause, for which he has a prior action depending. This extends toqui tam actions, where the plaintiffs are different, if the cause of the actions is the same; to informations qui tam, 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 *Page 48 of prosecution, the consequences of which are most grievous to the accused, seems at first view to be unjust and in conflict with the maxim, Nemo bisdebet vexari, si constet curiae quod sit pro una et eadem causa. This anomaly in the English law is only to be accounted for by the extensive criminal jurisdiction of the King's Bench; for it was formerly thought that no acquittal in any other court could be effectually pleaded in bar to a prosecution in the King's Bench. Into that court indictments may be removed from all inferior courts by writ of certiorari, and are thus under its control for all the purposes of justice.
If there be any criminal courts of local and independent jurisdiction, from which an indictment could not be removed into the King's Bench, that court would, I apprehend, be compelled by the reason and the rule to sustain such a plea as the one now relied on. This may be inferred from a passage in (84) Hawkins: "If an appeal be commenced before Justices in Eyre, and afterwards another appeal be brought in King's Bench, it will be a good plea that another appeal is depending, which shows that the King's Bench ought not, without a certiorari, to intermeddle in an appeal whereof another court is legally possessed before; and the reason seems to be the sameas to indictments."
The County and Superior Courts of this State have concurrent jurisdiction of the offense charged in this indictment; and where the jurisdiction of the former attaches, it must be exercised throughout before the Superior Court can take cognizance of the case, and then it can act only in its appellate capacity. There is no method by which an indictment can be removed from the County to the Superior Court before trial; so that, if a party were precluded from pleading the pendency of another indictment, he might be not only bis vexatus, but bis punitus, pro una et eadem causa. This reason is sufficient to show 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 the passion, excited by an attack on his person, was continued to the moment of the act. *Page 49
The jury were incorrectly instructed when they were told that it would have been murder, because there was no necessity on the part of the defendant to do what he did. The task was to distinguish between murder and manslaughter; but the (85) absence of necessity is common to both of them. Had such necessity existed, it would not have amounted even to manslaughter. In considering whether a homicide amounts to manslaughter or is excusable, the inquiry as to the necessity of 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 that is given for calling it murder.
I am consequently of opinion that, upon both grounds, the judgment must be reversed, and the demurrer to the plea in abatement overruled and the plea sustained.
So the plea was sustained.
Cited: S. v. Tisdale, 19 N.C. 161; S. v. Willeford, 91 N.C. 530; S.v. Moore, 136 N.C. 584.