The prisoner is indicted for murder. The case states (408) that the prisoner and the deceased, with many other persons, were assembled at the house of a Mrs. Gardiner, to shuck corn. While at dinner a quarrel arose between the prisoner and one Morrison, in which the deceased, who was present, did not interfere. The prisoner left the table and the house, with *Page 298 the avowed intention of going home. He was at that time under much excitement, and observed to the company, "Boys, do not follow me." After he had gotten within about fifty yards of the corn-heap, where he had left his coat, the witnesses on behalf of the prosecution stated that the deceased, with several of the company, overtook him, when a conversation ensued between the prisoner and the deceased, in which, at its close, the deceased observed to the prisoner, "You can get over the fence and eat some shallots," adding some rude expression, and immediately turned off from him and advanced towards the corn-heap, when the prisoner advanced several steps towards the deceased and drew his knife, and while his back was to him gave the deceased the fatal stab of which he died within a week. After giving the mortal wound the prisoner wiped his knife and put it into his pocket. For the defense the prisoner's son, Zachariah Collins, swore that upon the quarrel between his father and Morrison "the prisoner went out, telling the boys not to follow him"; that the deceased and others followed on behind him, and the deceased came up to him and took hold of him by the shoulders and told him that he might get over into the little patch and eat as many shallots as he pleased (adding the offensive expression as stated by the witnesses for the State); that at the time this took place the prisoner and deceased were standing side by side, and that they stood so three of four minutes; that witness went on past them and did not see the stab given, and had gone eight or ten steps when he heard the exclamation that the deceased was stabbed. Noah Connipe, (409) another witness for the prisoner, swore that he saw the prisoner as he came out of the house; that he said he was mad, very mad; that witness carried him his hat, when he said he was going home as soon as he could get his coat, which he said was near the corn-pile, and he started off in a sort of trot, telling the young men, among whom was the deceased, not to follow him. The witness also told them not to follow him, and his wife exclaimed, "For God's sake, boys, don't follow him." The counsel for the prisoner contended that the testimony of Connipe and Zachariah Collins was true, and that the jury must be satisfied from it that the deceased was engaged, with the other young men who were at the corn shucking, in laughing at and making sport of the prisoner; that the deceased had not only caught the prisoner by the shoulder, as stated by his son, but had used other violence to his person, by jerking him down, and that the fatal stab was given while laboring under the excited feelings thereby occasioned, and that, therefore, he was not guilty of murder, but only of manslaughter; and, further, *Page 299 that the instrument used was not a deadly weapon and that the death caused by it was accidental, and for that reason, also, the prisoner could only be guilty of manslaughter. The instrument used was a pocket knife with two blades, one small and the other larger, and the latter was used and the blade was two inches and a half long and ground sharp.
The presiding judge charged the jury that if the statement of Zachariah Collins were rejected as untrue, the homicide was undoubtedly a case of murder; that if Collins' testimony were believed, the mere catching the prisoner by the shoulder and using the language attributed to the deceased would not, of itself, amount to a legal provocation; they must be satisfied from the testimony of Collins, taken in connection with the other testimony in the cause, that the deceased had used more violence than that stated by the witness Collins; that the jury must be satisfied that the deceased had jerked the prisoner (410) down, as contended for by the prisoner's counsel; that that fact need not be distinctly proved, but might be distinctly and fairly inferred from other facts and circumstances proved, but it ought not to be merely guessed at or conjectured. The judge further charged that with regard to the knife with which the stab was given, some weapons were deadly or otherwise, according to the persons by whom they were used; that a knife which, in the hands of a boy two years of age, might not be deemed a deadly or dangerous weapon, might in the hands of a strong man be so; that if the jury believed that the knife used by the prisoner was not, in his hands, a deadly weapon, then the homicide was manslaughter; but if they though, as used by the prisoner, it was calculated to inflict a mortal or a dangerous wound, the killing, in the absence of a legal provocation, was murder.
The prisoner was found guilty of murder, and by his counsel moved for a new trial, on the ground that the court had misdirected the jury, both on the ground of the legal provocation and the nature of the weapon used. The motion was refused, and the prisoner appealed. The prisoner complains that his Honor ought to have instructed the jury that the provocation received by him was a legal one, and reduced the homicide from murder to manslaughter. When the testimony actually given to the jury is separated from the suggestions of his counsel of what might *Page 300 have taken place, the insufficiency of this defense is apparent. In his argument in the court below the counsel for the prisoner insisted that from the testimony of Connipe and Collins "the deceased had not only caught the prisoner by the shoulder, (411) as stated by his son, but had used other violence to his person by jerking him down." Of this additional violence, in jerking the prisoner down, no witness spoke. Collins himself, the son of the prisoner, saw nothing of it, nor did any other witness. It was, therefore, a mere assumption on the part of the counsel, forming no part of the evidence, and could not be taken into consideration as in any respect qualifying the homicide. His Honor, in charging upon this portion of the defense, stated to the jury that they must be satisfied from the testimony of Collins, taken in connection with other testimony in the case, that the deceased used more violence than that stated by the witness Collins; that the jury must be satisfied that the deceased had jerked the prisoner down, as contended for by the prisoner's counsel. In submitting to the jury an inquiry as to the existence of this alleged fact, his Honor went further than in strictness he was bound to do in favor of the prisoner. It is never the duty of a judge to charge a jury upon a fact purely hypothetical; if he does, it is an error, which can and will be corrected, if it act to the injury of the accused, and against which the judge ought to guard, as it is irremediable if calculated to prejudice the prosecution. Benton's case, 19 N.C. 169. It was a mere assumption of a fact upon the part of the defense, entirely unsupported by any evidence whatever.
The catching the prisoner by the shoulder by the deceased was, under the testimony in the case, no assault. It is not stated by any witness to have been done in a rude and angry manner. The language of Collins is that when the deceased came up to the prisoner "he took him by the shoulder" — not that he caught him. It does not appear that the witness considered it any violence, nor that the prisoner did, for according to the statement of the son, the parties "stood side by side for three or four minutes," during which time, and during the time, it took the witness to walk eight or ten steps; he does not testify to hearing any angry words or any scuffling whatever. (412) The subsequent instruction upon this part of the case, that the fact of "jerking down" need not be distinctly proved, but might be taken "for true from other facts and circumstances proved," was, as a general proposition, true, but had no application to the cause before the jury; there were *Page 301 no such "facts and circumstances" proved as to authorize the jury to draw any such inference or to justify the leaving the question to them.
We think his Honor, also, from tenderness to the prisoner, erred in his charge as to the nature of the instrument used by the prisoner. It is submitted to the jury, as a question of fact, whether a knife two inches and a half long was a deadly weapon, then the homicide was manslaughter; but if they thought, as used by the prisoner, it was calculated to inflict a mortal or a dangerous wound, the killing in the absence of a legal provocation was murder. We agree with his Honor as to the nature of a deadly weapon. The latter part of the definition is not such as is usual. It is generally described by writers as a weapon likely to produce death or great bodily harm. There are no precise terms, however, appropriated in the law to the description of such an instrument; it must be shown to be one capable of producing the effects described. No one can doubt but that a dangerous wound is a great bodily injury or harm. The description, therefore, given in the charge was correct. The error of his Honor consisted in leaving that to the jury as a question of fact which is strictly one of law. This is decided in S. v. Craton, 28 N.C. 165. The Court, in speaking upon the point now before us, says: "If the instruction had been prayed in reference to doubt about the instrument being a deadly weapon, as we conceive, the court ought not to have given it to the jury." Whether the instrument used was such as is described by the witnesses, where it is not produced, or, if produced, whether it was the one used, are questions (413) of fact; but, these ascertained, its character is pronounced by the law. His Honor's error consisted in leaving the latter questions to the jury. But though in the charge upon the points we have noticed there was error, it was not such an one as was calculated to do the prisoner any injury. On the contrary, it gave him the full benefit of a defense which did not arise in the case, in the one instance, and left to the jury in the other, as a matter to be found by them, a question which the law had pronounced against him. In neither case, then, has he a right to complain, and, of course, no right to a venire de novo. S. v. Swink,19 N.C. 9; Reid v. Moore, 25 N.C. 310.
The prisoner has before us further moved to arrest the judgment, and assigned the following reasons: First, because it does not appear from the record that the bill of indictment had been sent from the court to the grand jury, or how they got it into *Page 302 possession; secondly, that it does not appear that the prisoner was present in court during the trial. As to the first objection, if it could be taken in this form, we should not think it sufficient. Upon the back of the bill of indictment is the following endorsement: "State v. John Collins, murderer. Calvin Gardin, James Ingles and others, witnesses, sworn, sent and bound. S. B. Erwin, C. S.C. L. A true bill. D. Glass, foreman." From this endorsement it appears that the witnesses in behalf of the State were sworn in court and sent to the grand jury, with their names endorsed as having been so sworn upon that bill. This sufficiently shows that the bill was sent to the grand jury by the court. The second objection is equally unavailing to the prisoner. It is very certain that it is essential to the legal trial of a man upon a charge of life and death, that he should be present, to avail himself of any objection that might occur on the trial, and to confront the prosecutor and (414) witnesses against him. Bill of Rights, sec. 7.
The question here, however, is not whether the prisoner was entitled to be so present, but whether it sufficiently appears on the record that he was present. The record does not set forth, with that fullness it might have done and such as is usual, what did occur on the trial. But "it is sufficient if it be certain, to a certain intent, in general; it is not necessary that it should be certain to a certain intent in every particular, so as absolutely to exclude every possible conclusion, all argument, presumption or inference against it." This is the language of the Court in S. v. Christmas, 20 N.C. 545. The record in this case shows, in language sufficiently intelligible, that the prisoner was present at the conclusion of the trial. It states the names of the jurors who were sworn and charged to try the case; it then proceeds, who find:"John Collins, the prisoner at the bar, guilty," etc. It is answered on the part of the prisoner that this does not ascertain with sufficient certainty his presence during the trial.
Under the rule laid down in the case of Christmas, we think it does; and that we are bound, from it, to believe that he was present during the trial. S. v. Craton, 28 N.C. 165, is an authority on this point. The language of the Court in that case is: "But although it is the more correct that the presence of the accused should be expressly affirmed, yet we conceive it is sufficient" if it appear by a necessary or reasonable implication. In this case the accused is called by the jury, in their verdict, the prisoner at the bar, and the clerk, in recording it, calls him the prisoner at the bar. It would be too violent a *Page 303 supposition that he had been brought to the bar simply to hear the verdict pronounced, when his right to be present the whole time is secured to him by the fundamental law of the county; and when such is the uniform practice, if not a necessary, it is a reasonable implication that such was the fact, and we so understand it. It has, however, been argued before us that the expression, the prisoner at the bar, is satisfied by his (415) being in the custody of the sheriff. The prisoner, it is true, is in the custody of the sheriff after his arrest until duly discharged, unless he escape; but the term, the prisoner "at the bar," is used to designate where he is in his custody, to wit, at the bar, in the presence of the court and jury.
We cannot disturb the verdict nor arrest the judgment.
PER CURIAM. Ordered to be certified accordingly.
Cited: Brown v. Patton, 35 N.C. 447; S. v. Robbins, 48 N.C. 255; S.v. Matthews, 78 N.C. 532; S. v. Chavis, 80 N.C. 357; S. v. Speaks,94 N.C. 874; S. v. Wilson, 104 N.C. 873; S. v. Fuller, 114 N.C. 899; S.v. Sinclair, 120 N.C. 605, 606.