The prisoner, Daniel Ramsey, was indicted for the murder of Benjamin Walker. The evidence for the State was as follows:
The prisoner and the deceased had been drinking together *Page 196 in a grocery, an hour or two before the homicide; they both lived in Burke county, some miles from Morganton — were neighbors, and distantly related.
John Presnel swore, that an hour or two before the homicide, he sold the prisoner a gallon of molasses, and put it in a stone jug, which it did not quite fill.
Robert Brittain testified, that he handed the prisoner, who was on horseback, a bag with a jug in it, which appeared to have something in it; that he rode off some twenty or thirty paces, when Walker, the deceased, called to him, and requested him to stop and come back, that they might take another drink together; that he stopped, and Walker, who was quite drunk, went to him; that the next thing he saw of them, Walker was lying on the ground, and the prisoner was getting on his horse; he thought that the prisoner was sober; that not more than fifteen or twenty minutes elapsed from the time he handed Ramsey the jug, before he saw Walker lying on the ground and the prisoner riding off.
John Ferree stated, that Walker called to the prisoner to stop, and went to him where he was sitting on his horse; the next thing he saw was the deceased lying on the ground in the street, and the prisoner riding off; that according to his judgment not more than ten minutes elapsed from the time Walker went to the prisoner, until he saw prisoner riding off.
Joshua Setzer stated, that he was in his shop near the street, and saw the parties together in the street near his shop. Walker was drunk, and had his hand on the bridle of the prisoner's horse, and was insisting on the latter's going back with him to the grocery to take another drink, which the prisoner refused to do. He stated further, that a few minutes afterwards he saw that the bridle was loose from the hand of Walker, and Ramsey was trying to ride off, but before he could do so, Walker again caught the bridle; that the prisoner then got off of his horse and struck Walker a blow with the jury as it was in the bag, and they both fell to the ground; that they both arose about the same moment, when the prisoner struck the *Page 197 deceased a violent blow in the face with the jug contained in the bag, and the latter fell to the ground, apparently lifeless; that the prisoner then struck the deceased with the same instrument two violent blows as he was lying on the ground, which broke his nose and mashed it down; that the prisoner then got on his horse and rode off; that Walker, after a while, was removed to a house where he died a few days afterwards. This witness was of opinion that a quarter, or perhaps half, an hour elapsed from the time he first saw the parties near his shop until Walker was knocked down.
Mrs. Hennessee deposed, that she saw the prisoner and Walker in the street near her house; that Walker had the prisoner's horse by the bridle; that the prisoner asked him to let it go, but the deceased said he would not, and that Ramsey must go back and get some more liquor; that the prisoner still refused to go back and attempted to get the bridle loose from Walker; the latter held on till the rein broke; that the prisoner then swore he would make him let go; that he then got off from his horse and struck Walker with the jug. The witness thought they were wrangling half an hour or three quarters before the blow was struck. She was asked what she meant by "wrangling," to which she replied, she meant "that the prisoner was trying to make Walker let his rein loose, and Walker was holding on, insisting on the prisoner's going back and taking another drink.
Knox Tate stated that, when he came to where the parties were in the street, they were standing still; Walker had the prisoner's horse by the bridle; that the prisoner attempted to get the rein from Walker and it broke; the prisoner swore he could not stand that, and getting off from his horse, struck the other with the jug and knocked him down; that he gave him two violent blows in the face with the jug after he was down, as he was lying on the ground; that the prisoner said "damn you, lie there," and, getting on his horse, rode off.
Doctor Tate stated, that seeing the deceased lying in the street very bloody, he had him removed to a house and examined him; that his skull was broken above the right eye, *Page 198 and that this nose was broken and mashed down, until it was on a level with his cheek bones; that Walker died a few days afterwards from the wounds he had received. This witness further stated, that he had seen one gallon of molasses put into a stone jug and weighed, and that the weight was eighteen pounds; that he considered it a deadly weapon.
The Court charged the jury, that a stone jug containing a gallon of molasses and put into a bag, by which it might be used with more force, was a deadly weapon, in the hands of a man of ordinary strength, and was likely to produce death; that if they believed the testimony, the provocation was slight or trivial, and if they further believed, that the prisoner knocked the deceased down with the jug as described by the witnesses, and while he was on the ground inflicted two violent blows with the jug on the face of the deceased, breaking his skull and crushing his nose, thereby producing his death, it was a degree of violence, out of all proportion to the provocation given by the deceased, and was a case of murder. Prisoner's counsel excepted. The jury found the prisoner guilty of murder. Judgment was pronounced, and the prisoner appealed. There are some cases of homicide which are so near the dividing line between manslaughter and murder upon implied malice, that it is difficult to ascertain on which side they are to be found. The present case is one of that number, and it is only after a full examination of various instances of killing upon provocation more or less slight, and reflection upon the principles on which they have been decided, that we have been enabled to determine in which grade of guilt it is to be classed. In the case of theState v. Curry, 1 Jones' Rep. 280, we attempted the difficult task of stating, with some precision, the general rule, with the exceptions to it, which the Judges and the sages of the law have *Page 199 established upon this subject. The general rule is, that a killing upon provocation is not murder, but manslaughter. But there are three well-defined exceptions:
"1. Where there is provocation, no matter how strong, if the killing is done in an unusual manner, evincing thereby deliberate wickedness of heart, it is murder.
"2. Where there is but slight provocation, if the killing is done with an excess of violence out of all proportion to the provocation, it is murder.
"3.Where the right to chastise is abused, if the measure of chastisement, or the weapons used, be likely to kill, it is murder."
His Honor in the Court below thought this case came within the second exception to the general rule, and the question is whether the circumstances, under which the homicide was committed, justify his opinion.
In the consideration of this question, the first inquiry which is to be made is, whether the provocation which the prisoner received before he struck the fatal blow, is to be deemed a slight or trivial one, as it was held to be by his Honor. The injurious and unlawful restraint of a person's liberty, is undoubtedly considered a provocation of a grade sufficient to extenuate a killing; as where a creditor placed a man at the chamber-door of his debtor with a sword undrawn, to prevent him from escaping, while a bailiff was sent for to arrest him; and the debtor stabbed the creditor, who was discoursing with him in the chamber, it was held to be manslaughter only; Rex v. Buckner, Style's Rep. 467. So, where a sergeant in the army laid hold of a fifer, and insisted upon carrying him to prison; the fifer resisted; and whilst the sergeant had hold of him to force him, he drew the sergeant's sword, plunged it into his body, and killed him. The sergeant had no right to make the arrest, except under the articles of war and they were not proved. "BULLER, J., considered it in two lights; first, if the sergeant had authority; and secondly, if he had not, on account of the coolness, deliberation and reflection, with which the stab was given." The jury found the prisoner *Page 200 guilty of murder; but the Judges were unanimous that, as the articles of war were not proved, to show the authority of the sergeant to arrest, the conviction was wrong; Rex v. Withers, reported in 1 East's P. C. p. 233. See also 1 Russ. on Cr. and M. 488. The same doctrine was recognised as law in this State, in the case of the State v. Craton, 6 Ire. Rep. 173, where the two cases, above mentioned, were cited with approbation. It is not stated in either case, whether the illegal restraint of the prisoner's liberty was deemed a slight or a great provocation; but we must suppose that it could not have been either slight or trivial in the case ofWithers, else the Judges would hardly have been unanimous in holding that an act of stabbing with a very deadly weapon, done apparently "with coolness, deliberation and reflection," was only manslaughter. The circumstances under which the homicide was committed in the present case, made out a case of provocation, certainly not less aggravated than in that of Withers. The parties were neighbors, friends, and distant relatives, and had been drinking together in a friendly manner only a short time before the fatal transaction. The prisoner got his horse, mounted him and took his bag, having in it a jug containing a gallon of molasses, and started home. He had proceeded about twenty or thirty steps, when the deceased, who was drunk, called to him to stop and come back and take another drink. He did stop, and the deceased came up and took hold of the reins of his bridle and would not let him go. The prisoner tried to get loose, but the deceased held on until the bridle-rein broke. He then became angry and got off his horse and struck the deceased with his jug in the bag.
This was from ten minutes to three quarters of an hour after the deceased stopped the prisoner, the witnesses differing as to the length of time the parties were together before the blow was struck. When that was done, both the prisoner and the deceased fell to the ground, and, upon rising, the former knocked the latter down again with the jug, and then struck him, while down, two more blows with the jug which *Page 201 was still in the bag. The prisoner, then saying to the deceased, "damn you, lie there," mounted his horse and rode off. It cannot be denied that the act of the deceased was an illegal restraint of the prisoner's liberty, nor that his holding on to the prisoner's bridle-rein, against his remonstrances, until the rein broke, was well calculated to excite his passions, and they naturally prompted him to strike the deceased with what was most convenient, which was the jug in the bag then in his hands. The fall was well calculated to excite his passions still higher; and then, to strike again and again with what he still held in his hands, was the impulse of blind fury. There was no appearance of "coolness, deliberation and reflection," in his conduct, and the exclamation which follows, "damn you, lie there," was the dictate, and the evidence, of the furor brevis, which had just so fatally expended itself. That the act of the prisoner was highly culpable, no one can deny, yet no one can say that it did not proceed from the transport of passion naturally excited by the unlawful conduct of the deceased. It was the act of an infirm human being, during the brief period when the sway of his reason was disturbed, and before it could be calmed by reflection. He did not seek an instrument of death; and though he used a deadly weapon, it was one which the deceased, by making it necessary for him to dismount, compelled him to have in his hands at the moment.
We do not think that the provocation was slight, nor was it great. It was sufficient to arouse passion even in an ordinarily well-balanced mind, and the killing, though done with an excess of violence, was not out of all proportion to the provocation. Our opinion, therefore, is, that the conviction for murder was wrong, and as it was produced by an improper charge from the Court to the jury, the judgment must be reversed, and avenire de novo awarded.
PER CURIAM, Judgment reversed. *Page 202