The indictment, which was against the defendant and two others, had been found a true bill at Fall Term, 1841, of ANSON. At this term the defendants pleaded not guilty, and on affidavits (102) respectively made by the present defendant and by Thomas Waddill, another defendant, the trial of these two was removed to Richmond *Page 75 Superior Court of Law. The solicitor for the State then entered a nolleprosequi as to the other defendant, William Gatewood. The trial of the present defendant and Thomas Waddill came on before a jury at Richmond Superior Court of Law. The solicitor for the State called Vincent Parsons, who swore that he never heard any threats and never knew of any unkind feeling in either of the prisoners towards May, the deceased. They both disapproved of the match between May and Julia Martin, the sister of the prisoner Martin. He never heard Waddill speak disrespectfully of May; heard him say he believed letters were passing between him and Julia; heard Martin say he was certain May had been writing letters to Julia. When he said this, witness could not perceive he was angry. Witness concerned himself but little with their family matters; he had married the mother of Martin; Waddill had married one of Martin's sisters.
Philip Henry swore that on the Sunday before the election in May last he went to Mrs. Martin's and delivered Julia a letter from May; that while there Martin charged him with carrying letters from May to Julia, and said that whoever carried his letters was as damned a rascal as May; that if May ever came upon the premises he would kill him — he had money enough to pay for it. On the night before the election May stayed with witness at his father's. The next morning they went to May's house to breakfast. While there they loaded two pistols belonging to witness; May carried one, witness the other. The pistol May had was an ordinary pocket pistol, the barrel about 2 1/2 inches long; it shot with force; once shot a ball through an inch plank at the distance of 50 yards. May said he was going to the election to show his independence; he was not afraid of Martin, and, if attacked by him, would defend himself. They called by for Capel and then walked to the election; each had a hickory walking stick. Capel had no pistol. The election was held on 13 May last, at the house of one Smith in the county of Anson. Witness and May acted as clerks of the (103) election; were called on after they got on the ground. Waddill was the superintendent of the election. Waddill and May spoke as usual; there was no exhibition of hostile feeling on the election ground. A short time before the polls were closed May and Gatewood took a walk. After the polls were closed, witness, May, Capel, William Smith, and Samuel Smith started home, all walking. They had got about 150 yards, and were in Smith's Lane, when they heard horses coming, and, looking round, saw Martin, Waddill, Gatewood, and Whitlock coming in a walk or trot. Martin rode up first. They divided to let him pass — witness, May, and William Smith turned to the left, Capel and Samuel Smith to the right. Martin rode past and immediately turned his horse across the road in front of May. Waddill, Gatewood, and Whitlock rode up *Page 76 abreast and stopped, the head of Waddill's horse being near the tail of Martin's; the lane fence was on the left, and so they were hemmed in by Martin's horse in front, Waddill's on the right, and the fence on the left. As soon as Martin stopped he said, "May, I understand you came here today to make an attack on me." May said, "Who is your author?" Martin said, "A respectable man." May said, "Who is he?" Martin said, "Gatewood." May said, "Did I tell you so, Mr. Gatewood?" Gatewood said, "Yes." Martin said, holding a whip in his hand, "I have a mind to horse-whip you." Waddill said, "What does he say? God d___n him, whip him?" May looked at Waddill and said, "You would, eh?" Waddill got out a pistol, his little son, William, who was behind him, having tried to prevent him; he cocked it and held it up over May, the muzzle not being pointed at him, and said, "Damn you, I have a mind to shoot you." May opened his breast and said, "Here is an open breast; shoot." Whitlock came up and took little William, who was crying, off the horse, and put him on the ground. Waddill drew back his pistol, and witness did not see it again, and turning to witness said, "You are as damned a rascal as May." Whitlock said to witness, "Don't mind what he says." Witness said, "I can take that from you." (104) Waddill said, "Damn you, I can whip you." Waddill looked towards where May was standing, and said something, witness could not tell what, but witness looked and saw Martin standing near May, with a pistol presented near his face; it fired instantly. May fell, and died in twenty-five or thirty minutes. The ball entered his left eye near the temple. The whole took place in a very short time. May, when shot, stood a few paces from witness, with his back to him, and nearly between witness and where Martin stood when he fired. Witness did not see May's pistol until he was on the ground, when it was lying between his right arm and side; did not notice whether it was cocked or not. As soon as May fell, Waddill, who was still on his horse, said, "Edmund, you have killed him." Martin said, "Why, then, did he draw his pistol on me first?" and then said, "What shall I do?" Waddill said, "Go home." Martin said, "Follow me," and got on his horse and rode off. Waddill then said, "This is an unfortunate affair; I little expected it." Witness suggested that Martin should be arrested. Waddill said, "Yes, arrest him." Witness started back to the election ground to get help. Upon cross-examination, witness said he took the pistol to the election because he expected Martin would be there, and was determined not to be imposed on — he was too young to vote. Capel did not vote. Witness had agreed to go with May and help steal Julia. Witness was the nephew of Mrs. Parsons. Through Smith's Lane was the way for Martin, Waddill, and Gatewood to go home.
Thomas Capel was next called by the State and sworn. He described *Page 77 the affair as Henry did, with this difference: he was on the outside of the horses while Waddill and May were talking; Martin got off his horse on the outside from May — did not fasten him; had a whip in his hand; witness saw no pistol. Witness said, "Martin, you ought not to interfere with May; he has given you no provocation." Martin replied, "You are all d___d rascals," and walked between the tail of his horse and the head of Waddill's, his back to witness. Waddill was then abusing Henry. Martin took the small end of the whip in his left hand, walked up to May, and gave him a light tap with the butt end on his breast. May put his hand in his pantaloons pocket and got his (105) pistol to his hip. Martin very quickly presented his pistol and fired. May fell to the ground, and died without speaking. He was shot in the left eye. Witness did not see where Martin drew his pistol from; did not think May got his pistol higher than his hip when Martin fired; between the tap of the whip and report of the pistol could have counted 1, 2, 3. Witness being asked by the prisoner's counsel, with a view to impeach him, if he had not said, at the burial of May, that if Martin had not fired as quick as he did, he would have been a dead man in a second, did not recollect saying so. Witness had agreed to go with May and see him married.
William Smith, for the State. He described the affair as Capel did, with this difference: he was on the inside with May and Henry, but while Waddill was trying to get out his pistol, retreated, as he did not wish to be in the scrape, and came around on the outside where Capel and Samuel Smith were. When Martin passed between the horses, he said to May, "I have a mind to horse-whip you." May said, "Attempt it." Martin walked up with the whip in his left hand and tapped May lightly on the breast with the butt end. Witness then saw May's pistol in his hand about his hip, and quickly heard a pistol fire. Martin's back was to witness; witness did not see his pistol; thinks he could have counted 1, 2, 3, 4, 5, from the tap with the whip to the report of the pistol; did not see May's pistol raised above his hip. May's pistol was lying on the ground between his hand and side — cocked or half-cocked, and a cap on the tube.
Samuel Smith, for the State, described the affair as William Smith did.
Washington Ingram, for the State, swore that on the day of the election, at the election ground, he saw Gatewood hand the whip to Martin. Martin asked witness if he could knock a man down with it. Witness said, "By striking him in the right place." Gatewood said he could knock a horse down with it. Afterwards Waddill took the whip out of Martin's hands and held it a while. Martin then took it, saying he wanted it, or had a use for it. This was about 2 o'clock. Witness *Page 78 (106) described the whip; said it was such as overseers use — about 3 feet long, thongs of leather platted over a staff; thinks the staff was about 18 inches long, tapering to a point; about 1 inch in diameter at the butt; the staff was of white oak.
Young Allen, for the State, swore that the day after the homicide, while he was taking Martin to jail, he observed to him, "It was a pity the ball had not struck the bone, when it would have glanced and not have killed May." Martin said, "It would not have glanced if it had struck the bone, for his head was turned to one side when I fired."
Here the solicitor for the State announced that he would rest the case.
The prisoner's counsel stated to the court that Gatewood, Whitlock, and William Waddill, the three other persons who were present at the transaction, were in attendance, having been summoned by the prisoners, and moved that the solicitor might be required to introduce them. The solicitor declined using them as witnesses, and the court refused to require him to do so. The prisoner's counsel then moved that the court should call these witnesses and have them examined, as witnesses of the law, in behalf of the State. This the court declined doing, as no such practice had obtained in our courts.
The prisoner's counsel then called William Gatewood. The solicitor objected to his competency, because he was charged in the indictment as principal in the second degree, and the bill was found as to him. The prisoner's counsel produced a record showing that a nol. pros. had been entered as to him, and that he had been thereupon discharged. The court held that he was a competent witness.
William Gatewood, for the prisoner, swore that on the afternoon of the day of election, before the polls were closed, May asked him to take a walk. They went about 50 yards into the woods. May said he had heard of Martin's threats, and had come there that day expecting Martin to attack him; he had no other business; he was prepared for him, and if Martin did attack him, he would cure him. He then asked (107) witness to carry a letter to Miss Julia, which witness declined doing. They then walked back. After the polls were closed, witness, Martin, Waddill, and Whitlock started to get their horses to go home. Witness told Martin what May had said; could not recollect whether he told about being asked to carry a letter — thought he did not. Martin said, "This is no place to attack a man on such an account." They get their horses and started; does not think Waddill heard what he told Martin; little William Waddill rode behind his father. Witness did not know that May was before, and had no reason to believe that Martin or Waddill did. They rode on in a walk or trot, without saying anything, as he recollects, until they got within about 50 yards of May, when Martin pushed on ahead, and stopped in front of May, as described *Page 79 by witness Henry. Waddill, witness, and Whitlock stopped near Martin. Martin said, "May, I understand you came to the election today expecting to be attacked by me?" May said, "Who is your author?" Martin said, "Gatewood." May asked witness if he had said so; he said, "Yes." Martin said, "I have a mind to horse-whip you." Waddill said, "Whip the d___d rascal." May turned towards Waddill and made one step, and said, "You would, eh?" Waddill put his hand in his coat pocket, pulled out a pistol and told him not to come nearer. May said, "Whoop and thunder, by God!" — opened his bosom and said, "Here's an open breast; shoot!" Waddill put up his pistol and began to quarrel with Henry. By this time Martin had got off his horse and came round to where May was. They had some words — witness could not recollect them. Witness turned his head at that moment towards Henry; heard Waddill say, raising both hands, "Boys, quit that." Witness looked at Martin and May; both had pistols presented, the muzzles within 3 inches; May's arm was stretched out, and his pistol level; instantly a pistol fired — could not tell which had fired till he saw May falling to the ground. Witness produced the whip. It corresponded with the description given by Ingram, except that the staff was of rawhide and not white oak; the end had brass tacks. Witness said he did not hand the whip to Martin, as stated by Ingram; it was taken from witness by little William Waddill, and he said he had no such conversation with Martin as (108) that stated by Ingram. On cross-examination witness said he was the overseer of the estate of which Martin and Waddill were part owners; he was in the employment of a Mr. Allen, who had the general superintendence of the Martin estate, as no division had been made; lived at Mr. Parsons'. On the day before the election witness rode with Martin to Lisles' store. Martin told witness May was a young man he liked very well in his place, but he liked no man out of his place; that he intended to have a talk with him and try and dissuade him from writing letters to his sister, and if he could not stop him in that way, he would make him stop. To impeach him, he was asked if, shortly after the affair, he did not tell Mrs. Biddle he was not certain whether May drew his pistol or not. He answered, he did not believe he had said so.
William Waddill, for the prisoners. He stated that he was about 12 years old, the son of the prisoner Waddill; that he rode behind his father to the election; took the whip from Gatewood, and was popping it about in the yard; his uncle Edmund told him to quit or he would take it from him; kept popping it, and his uncle took it from him, and had it the rest of the day. Never heard his father or uncle Edmund say anything about May, except his father told his mother that he was certain May was writing letters to his Aunt Julia, and they seemed not to like it. When his father started home, witness did not know May was on the *Page 80 road ahead; rode behind his father; rode slow; overtook May; his father got into a quarrel with him, and drew his pistol out of his coat pocket; tried to prevent him; cried; Whitlock took him down. His uncle said to May, "You come here today for me to attack you." May said, "Who is your author?" Uncle said, "Gatewood." Gatewood said, "Yes, he was." His uncle gave May a light tap on the breast with the whip; May drew his pistol, presented it; his arm was stretched out and pistol level; his uncle drew his pistol and fired before his arm was (109) entirely straight. Father of witness said, "You have killed him, Edmund." His uncle said, "Why did he draw his pistol on me first?"
The prisoner's counsel here stated to the court that the witness Whitlock was in town, and, being somewhat unwell when the trial began, was now too sick to come into court, and prayed to be allowed to read his examination, taken in writing by the committing magistrate. The solicitor admitted that Whitlock was too sick to be brought into court, but objected to the examination being read in evidence. The court allowed the prisoner's counsel to read it, being satisfied that Whitlock was not there, and would not be during the trial, to be examined in person. It was then read, as follows:
James D. Whitlock, the first witness for defendants, being duly sworn, states as follows: That he, Martin, and Waddill were going home, and when they came up with Mr. May and company, Martin rode on before May and turned his horse round and stopped. Waddill stopped just behind him, and Martin said to May he supposed that he, May, was going to attack him there that day, and May asked him his author, and Martin said it was a very respectable man. May asked him again who was his author, and he told him Mr. Gatewood. May turned round and asked Gatewood if he did say so, and Gatewood, said he did. Then Waddill said, "Whip the d___d rascal," and began to get out his pistol; and May, he thinks, stepped up to him and opened his breast. Then I tried to take the pistol away from him, and Waddill turned towards Mr. Henry and went to cursing him, and said he had acted like a d___d rascal. Then I stepped up to Mr. Henry and told him I would drop it, if I were him. I don't recollect anything Henry said. While I was talking to Henry, I heard the pistol and turned round and saw the man fall; and Waddill said, "Edmund, you have killed him, and you ought not to have done it," and Edmund said he drew his pistol on him first. Martin then asked what he should do, and Waddill said, "Go home."
Question by Mr. Little: Did you hear Waddill at any time threaten to shoot May? Answer: I did not.
Question 2: When Waddill told Martin to whip May, what was his *Page 81 reply? Answer: It was, that he did not want to whip him. He wanted to tell him what he thought of him. (110)
Question 3: Describe how Waddill held his pistol. Answer: He had the breech in one hand and the barrel in the other when I tried to get it from him.
John C. Miller, for the prisoner, swore that at the burial of May the witness Capel said if Martin had not fired when he did he would have been a dead man in a second.
James B. Lindsay, for the prisoner. He got to the place before May died; found a pistol on the ground between his elbow and body, the muzzle towards his shoulder; thinks it was cocked; saw a cap on the tube [produced the pistol, which was admitted to be the same]; the trigger was secret; when half-cocked, the trigger did not show, as was usual with such pistols; when full cocked, the trigger only came out a part of the way — you had to push it back with the finger to bring it at right angles, its proper place to fire; thinks the trigger was not at right angles when he took it up, but partly out.
The prisoner then called several witnesses who proved that Gatewood was a man of good character. The same witnesses proved that Philip Henry, Thomas Capel, William and Samuel Smith, and Washington Ingram were men of good character.
The solicitor then called Fannie Biddle, who swore that shortly after the affair Gatewood told her he was not certain whether May drew his pistol or not, but thought he did draw it.
Mr. Biddle, for the State, swore that he washed the wound, but did not probe it; thinks the ball entered the corner of the eye and ranged towards the back of the head towards the right side.
As to the prisoner Martin, the court charged: That if the jury were satisfied that Martin had killed May with the pistol, as charged in the indictment, it would be a case of murder, unless the evidence made a justification, excuse, or mitigation; for the law implied malice where a man was wicked enough to kill another without (111) justification excuse, or mitigation.
The position assumed by the prisoners' counsel, that if Martin approached May and touched him lightly with the whip, and May thereupon drew his pistol, intending to shoot, Martin was justified in killing to prevent a felony, was not law, because the wrongful act of Martin caused May to draw his pistol.
As to the second position assumed by the prisoners' counsel, that if Martin approached May and touched him lightly with his whip, and May instantly drew his pistol, so as to place Martin under the necessity of shooting to save his own life, it was excusable, in self-defense, or at most but manslaughter, the court charged that if, upon a sudden quarrel, *Page 82 without preconceived malice, one strikes another an ordinary blow, and it is returned with such fierceness as to endanger his life, and, having no other chance to escape, he kills, this would be killing in self-defense; or if, being excited by the fierceness of the return, he kills without attempting to get out of the way when he might, this would be manslaughter, although he struck the first blow; for the sudden quarrel accounts for the first blow, and the fierce return accounts for the killing. If the jury were satisfied that Martin was angry with May for writing and sending letters to his sister, but had formed no intention of killing him or of attacking him when he went to the election; that May told Gatewood he expected Martin to attack him, and was prepared for him, and would cure him if he did; that Gatewood told this to Martin; that Martin, before riding up to May, determined to horse-whip and to kill him if he resisted; that for this purpose he stopped him, had the words with him, got off his horse, and approached him in the manner described, knowing that he was armed, and expecting that, when touched with the whip, he would draw a pistol or rather deadly weapon, and intending, if he did, to shoot him, it would be a case of murder, and would not come within the position laid down, because here was preconceived malice. But if the jury were not satisfied that Martin had formed this (112) determination before he rode up to May, and believed that he determined to horse-whip May just before he dismounted, then it would be necessary to decide whether this determination was the effect of a quarrel that then took place or was the effect of previous angry feeling, inflamed by the words of Waddill. This was a question of fact for the jury. The court could only assist the jury by telling them that the word quarrel was used to mean not merely when two bandied angry and abusive words, but extended to the case where a man did or said anything calculated to offend an ordinary man, for the offense then given would account for the blow; and the jury would consider whether the conduct and words of May, at the time, were calculated to give offense, whether it would have been less offensive for May, when interrogated, to have answered "Yes" directly, instead of evading by asking for the author. It would also be necessary to decide whether, after Martin formed this determination, he approached and touched with the whip and met with a return unexpectedly fierce, or whether he did not expect May to draw a pistol or other deadly weapon when touched with the whip, and had not made up his mind to shoot him if he did. If the determination was the effect of the quarrel that then took place, and the return was unexpectedly fierce, it would come within the position laid down and be a case of killing in self-defense or of manslaughter. But if the determination was the effect of previous angry feeling, inflamed by the words of Waddill, and the return made was nothing more than *Page 83 was expected by Martin, and in the event of which he had made up his mind to shoot, then it would not come within the position laid down, but would be murder.
As to the third position assumed by the prisoners' counsel, that if, upon a sudden quarrel, two men fight with deadly weapons, each having a fair chance, and one kills, it is but manslaughter, the court charged that such was the law; that cases of this kind were of more frequent occurrence in former times, when gentlemen usually went armed, than at the present day, but the law was still the same; that to make this position applicable, it was necessary there should be a sudden quarrel, giving it the meaning as explained before, and they fight so soon after as not to allow time for reflection; for if the parties had time to (113) reflect and become cool, it was the case of an ordinary duel, and it made no difference whether the challenge was verbal or in writing; and it was further necessary that no advantage should be taken, and the party must wait till his adversary was ready, for the law allowed this mitigation out of regard to the frailty of men who fought as a point ofhonor. Whether there was a sudden quarrel which caused the fight, or whether it was the result of previous angry feeling, inflamed by the words of Waddill, and whether Martin waited until May was ready, or whether he did not approach intending to touch May with the whip, to see if he would take a whipping, intending, if he attempted to draw his weapon, to take all advantages and shoot him as soon as he could, and whether he did not accordingly do so, are questions of fact left to the jury.
The jury found Martin guilty of murder, Waddill of manslaughter.
The prisoner Martin, by his counsel, moved for a new trial for the following reasons, viz.:
1. Because the verdict was contrary to law and evidence.
2. Because the court erred in instructing the jury: (1) The prisoners' counsel requested the court to charge the jury that if Martin, when he gave the deceased the tap on the breast with the whip, did not intend to injure him, but only to show the deceased that the prisoner was not afraid of him, or to offer him a mere personal indignity, then the drawing of a pistol by the deceased was a resistance disproportioned to the assault, changed the character of the combat, made the deceased an assailant, and the killing was only manslaughter. (2) That when Martin threatened to horse-whip the deceased, and the deceased replied, "Attempt it," Martin gave him the light tap on the breast, the deceased drew his pistol, Martin drew and shot him, it was an affray in heat of blood and the homicide only manslaughter. (3) That it was an affray; the parties fought on equal terms, and the killing was only manslaughter. (114) *Page 84
3. Because Peter May, one of the grand jury who found the bill of indictment in this case, was the uncle and near relation by consanguinity of the deceased, William W. May.
4. Because Joel E. Horne, one of the witnesses indorsed on the bill of indictment as being sworn and sent to the grand jury as a witness in the case, was neither sworn on the trial, tendered, nor introduced as a witness.
5. Because, when the solicitor announced to the court that no other witnesses would be introduced by the State, the prisoners' counsel stated to the court that, as it appeared by the testimony for the prosecution three other witnesses were present when the homicide charged in the bill was perpetrated, and the court being then informed that these witnesses were summoned by the prisoners and were present in attendance on the court, the counsel prayed that in the furtherance of justice the State might be required to introduce them on the trial; the solicitor declined using them as witnesses, and the court declined to make the desired requisition; it was then moved that the court should call the witnesses and have them examined as witnesses of the law in behalf of the State, which his Honor also declined doing.
A new trial was refused. The court was of the opinion that the objection because Peter May was one of the grand jury could not avail after the trial. (2) In relation to the witness Horne: This witness had been called by the State before the trial and his absence made known, which fact, in the opinion of the court, removed all objections, supposing the State was bound to examine him if he had been present, from the fact of his having been sworn and sent to the grand jury. As to the fifth ground, that Gatewood, Whitlock, and William Waddill, who were present at the killing, were not examined by the State or by the court, the court refused a new trial, first, because, in the opinion of the court, no rule of practice by which the solicitor was expected or required to examine all the persons present at the transaction was in use or force in this State. But, secondly, the rule, if there be such a one, could not apply to this case, because Gatewood was the overseer of a (115) plantation of which Martin and Waddill were part owners, and the same indictment had been found against him, although a nol.pros. was afterwards entered. William Waddill was a child about 12 years of age, the son of one of the prisoners and the nephew of the other, and Whitlock was at the time near the courthouse, so much indisposed with fever as to make it unsafe for him to be brought into court.
As to the other grounds, the court was of opinion that the matters of law had been fully and correctly given in the charge to the jury.
The rule for a new trial was discharged, and, the judgment of the court having been pronounced, the prisoner Martin appealed to the Supreme Court. *Page 85 The Court has carefully considered the instructions given by his Honor to the jury, and does not perceive any error in them to the prejudice of the prisoner. It was argued at the bar that it was a case of sudden affray or mutual combat in the heat of blood, and that the court ought to have directed the jury that if the prisoner touched the deceased with the whip as an invitation to him to draw his pistol, and they immediately proceeded to the mortal affray, with pistols on each side, the killing was not murder. But court is not bound to lay down to the jury propositions merely abstract, however correct they may be in point of law. It is enough to inform the jury upon such questions as the evidence raises, and not trouble them with those upon which there is no evidence. In this case it is sufficiently obvious that the position taken in the argument had no application. When an invitation to May to draw his pistol is spoken of, it must mean that he was to draw for the purpose of fight with those weapons on both sides, and, moreover, for a fair fight with them. Now, there was no evidence of the state of facts supposed. But several circumstances show in the mind of the prisoner a different purpose. These were the previous ill-will, or angry feeling, as the judge called it; the communication to the prisoner, by his own witness, at the election, that May was armed to repel an (116) attack expected from him, and his reply, that that was no place for the attack; then, the following the deceased by Martin and Waddill, the stopping him and commencing an immediate quarrel with him by both, the assault on him by Waddill with a pistol, without having said one word of having a pistol himself, or otherwise proposing a combat of that kind. There was no warning from the prisoner; nothing like "Prepare yourself," or "Are you ready?" So far, therefore, from being evidence of a challenge to fight on an equal footing, these facts, if believed by the jury, afford a rational inference that the prisoner had no such intention, but designed, upon the exhibition of an attempt on the part of the deceased to resent in that way the indignity of a stroke with a whip, to shoot him before he, the prisoner, could possibly be hurt. Upon that supposition, the killing would undoubtedly be murder. Being secretly prepared to kill, and intending to do so instantly in case he should perceive the appearance of danger from the other party, it is apparent that he sought the other's blood without meaning to be really exposed himself. In such a case it is not material that the purpose of the prisoner was inspired by high words between him and the deceased. *Page 86 They furnish no mitigation for the killing an unarmed man, or an armed one taken designedly at a disadvantage; for the law, is, "that in the case of mutual combat, in order to save the party making the first assault upon an insufficient legal provocation from the guilt of murder, the occasion must not only be sudden, but the party assaulted must be put on an equal footing in point of defense, at least at the outset." East P. C., 242. admitting, then, this to have been a sudden mutual combat, it yet remained to ascertain, as matters of fact, whether the parties fought fairly and whether the prisoner allowed the deceased to get on an equal footing with himself, or whether it was or was not his (117) purpose, from the beginning, that the deceased should not have an equal chance.
Those inquiries naturally arose out of the evidence, and they were left to the jury with instructions which could not have been misunderstood. In substance, they were: That if the prisoner, when he made the assault with the whip, did not intend to shoot May, and his shooting was in consequence of the other party, contrary to the prisoner's expectation, resorting to the use of a deadly weapon, then the killing was not murder. But if the prisoner expected, in case he struck with the whip, that May would endeavor to return the assault by shooting him, and, nevertheless, the prisoner determined to make the attack, and made up his mind, if the other attempted to draw his weapon, to kill him as soon as he could, that, then, the killing with such a mind was murder. That such was the meaning of the presiding. Judge we think is apparent when the whole charge is considered.
The case was submitted to the jury under several aspects. It was first supposed the jury might be of opinion that before the prisoner rode up, and, consequently, before any words and without any immediate provocation, the prisoner "had determined to horse-whip the deceased, and kill him if he resisted, and for that purpose stopped him, had words with him, and touched him with the whip, expecting him to draw a pistol, and intending to shoot him if he did" — it would be a case of preconceived malice, and be murder. To so much of the charge there can be no exception; for, to follow a person and seek a combat with him for the purpose of killing him, and covering the act with the pretense of a dangerous resistance to a moderate assault, is nothing less than wreaking a diabolical vengeance.
A second hypothesis was that the determination to horse-whip might to have been formed beforehand, but was formed just before the prisoner dismounted for the purpose of inflicting it, when he said, "I have a mind to horse-whip you." In that case the attention of the jury was directed to two inquiries as material to the degree of the offense. First, they were told to ascertain whether this determination was the effect of *Page 87 the quarrel that then took place, and not of previous angry feeling; and if they should so find, and be also of opinion that May's (118) return to the first assault was not expected by the prisoner, that then, from the nature of May's resistance and the danger arising therefrom to the prisoner's life, the killing would be extenuated to self-defense or manslaughter, according to certain circumstances mentioned. But they were told, secondly, that if this determination was not the effect of a quarrel that then took place — in other words, was not in fact provoked by the deceased at that time, but was the effect of previous angry feeling, inflamed by the words of Waddill — incited, that is to say, by the prisoner's own associate; and the jury should find that the prisoner expected May to draw a pistol if he struck him, and had made up his mind to shoot him if he did; and, accordingly, that the prisoner did shoot immediately upon the weapon being drawn — then it was murder. And, as we conceive, this instruction is law, for two reasons: The killing would be murder, without regard to the want of equality of the parties in the combat, upon the ground that it was upon previous ill-will, or, at all events, without recent provocation from the deceased; for the instruction supposes the assault to be found by the jury not to have been caused by the quarrel at the time; and, consequently, it is not a case of sudden heat of blood or provocation, but of preexisting ill-will, wrought up to the pitch of taking life by the opportunity to do so, and the advice of a comrade who likewise cherished bad feelings toward the person attacked. But, besides, it would be murder for the reason on which his Honor submitted the case to the jury, that is to say, the undue advantage sought and taken by the prisoner. The case was distinctly, we think, put to the jury in that point of view; for it is to be observed that the jury was directed to consider whether Martin did not expect May "to draw" a pistol, and "made up his mind to kill him if he did," which is saying that he intended to kill him if he drew, and as soon as he drew, without allowing May time for full preparation, if he could prevent it. That the jury must have received the instruction in that sense is deducible from the terms in which it was expressed; but it is placed beyond doubt by the language used in closing the charge. It is, "that whether there was a sudden quarrel which caused the fight, or whether it was (119) the result of a previous determination, or of previous angry feeling, inflamed by the words of Waddill, and whether Martin waited untilMay was ready, or whether he did not approach intending to touch May with the ship, to see if he would take a whipping, and intended, if heattempted to draw his weapon, to take all advantages and shoot as soonas he could, and whether he did not, accordingly, do so, were left as questions of fact to them," the jury. Now, although one may not intend to kill another if he will stand and take a whipping, yet if he be *Page 88 prepared with a weapon, and determined in his mind to kill him if he does not submit, but offers or attempts to resist by drawing a pistol, and with that resolution formed, and expecting such an attempt at resistance, he makes the assault, without more provocation, intending to kill before the other party can do more than attempt to draw, if death ensue, it must be murder. The assault was not designed to be, nor was it in fact, an invitation to fight with pistols; but it was a provocation by one party to the other to draw a pistol, with the intention to kill him if he made the attempt; and this without any notice of a purpose on his own part to use a deadly weapon. The suddenness of the purpose to kill in such a case does not extenuate the offense, more than a sudden determination to slay an unoffending man accidentally met in the street. The attack is found not to have been made on cotemporaneous provocation; and besides, if it had been, from the manner of it, it was rather an assassination than a mutual combat in a fair field.
Although the other grounds of exception stated in the record were not spoken to at the bar, yet in a case of such magnitude to the prisoner it seems proper to notice them.
The first is that the verdict is contrary to law and evidence. If it be so, the Court cannot help the prisoner. We can correct the errors of the judge, but not those of the jury, unless they may have been produced by the judge.
The position that the State is bound to examine all the persons who were present at the perpetration of the act, or to examine on the trial all witnesses who had been sent to the grand jury, has neither (120) principle nor practice in this State to support it. The persons present are not the witnesses of the law, like persons who have attested a will. It is in the discretion of the prosecuting officer, as of any private suitor, what witnesses he will call. He examines such as he deems requisite to the execution of the public justice. If others can shed more light on the controversy, or place it in a new point of view, it is competent to the prisoner to call them. Without considering, therefore, the peculiar reasons on which the particular persons were dispensed with on this trial, and notwithstanding a modern case in England, we think the ruling of his Honor right, on the broad ground that it was the province of the solicitor, and not of the court, to determine who should be the State's witnesses.
The objection to the grand juror comes too late after the plea to the felony. S. v. Seaborn, 15 N.C. 305.
The opinion of the Court, therefore, is that the prisoner is not entitled to a venire de novo.
But the counsel for the prisoner has taken numerous objections to the record, and insists that the judgment should have been arrested, and must now be reversed. *Page 89
Upon the transcript filed by the prisoner, the indictment appeared to be defective, for the want of charging the giving of the mortal wound by the bullet shot from the pistol. The Attorney-General suggested the omission to be in making the copy, and obtained a certiorari for a fuller transcript. Upon that the clerk sent up a second transcript, in which the defect has been supplied, and the indictment seems to be perfect. But it is objected that the court cannot receive the second transcript because the writ ofcertiorari is not annexed to it, and no return is indorsed on the writ or made to the court, so as to make it appear that this transcript is sent in obedience to the writ. The clerk sent back the writ with the transcript inclosed together in a sealed letter, addressed to the clerk of this Court, in these words: "Pursuant to your writ, I have made out another transcript of record in the case of the State against Martin, which is herein handed you."
As the return was not entirely formal, and we always deem it best to follow settled precedents, we did not choose to determine whether that return would do when it was so easy to have one (121) undoubtedly regular. The writ and transcript were, therefore, returned to the clerk; and he has sent them back, attached together by wafers, and with the following return on the writ:
"State of North Carolina, "Richmond County — In the Superior Court of Law.
"The execution of this writ appears in a certain schedule hereunto annexed. In witness whereof, etc.," the usual attestation following, under the hand of the clerk and the seal of the court, both to the return and the transcript. The objection is thus removed; and we should not have felt called on to notice it had we not observed that nearly all the clerks seem alike uninformed upon this subject, and hence we suppose they may profit by this as a precedent.
Upon the reception of the second transcript several objections were taken to it, which will now be mentioned and disposed of.
The indictment was preferred in the Superior Court of Anson against three persons, Edmund Martin, as the perpetrator of the murder, and Thomas Waddill and William Gatewood as accomplices, present at the fact, aiding and abetting. The trial of Martin and Waddill was removed to Richmond Court; and from that court this appeal was taken to this Court. The transcript of the record from Anson is set forth in the transcript from Richmond, and states that "At a Superior Court of law, begun and held for, etc., at, etc., on the second Monday in September, in the year, etc., before the honorable Justice J. W., the sheriff returned the venirefacias," etc., from which a grand jury is impaneled. It then proceeds: "A bill of indictment, in the following words and *Page 90 figures, was preferred" before the grand jury, that is to say, which was returned into court by the said grand jury, "A true bill."
The transcript afterwards proceeds thus: "Wednesday, 15 September, 1841, the court met pursuant to adjournment," and it then sets out the arraignment of the three, and their plea of not guilty, and then the affidavits of Martin and Waddill respectively, and orders thereon made that the trial should be removed, as to those two, to Richmond.
(122) Again the transcript proceeds: "Tuesday, 21 September, 1841, the court met pursuant to adjournment," and then sets forth a nolleprosequi by the solicitor for the State, as to Gatewood, and his discharge upon proclamation.
The first exception to this record is that it does not appear when the indictment was found, nor that the arraignment and plea were in the same term, inasmuch as no adjournment is set forth from the second Monday in September to Wednesday, 15 September, which is the day of the prisoners' plea, and the next time that is mentioned after Monday on which the court was opened.
But, supposing, for the present, that the use of the past tense is not fatal, we think the time of finding the indictment does appear, and that the exception is not sustainable in any respect. It appears by the record that the court began on the day fixed by law, and was held by the proper person. No day is stated as that on which the indictment was presented other than that on which the court began; and, therefore, it follows that it was in fact found on that day. The term of a court is in legal contemplation as one day; and although it may be open many days, all its acts refer to its commencement, with the particular exceptions in which the law may direct certain acts to be done on certain other days. It is seldom necessary that the day of any proceeding should appear in making up the record, distinct from that of the beginning of each term, although a minute may be kept of each day's doings. Nor is it necessary that there should be adjournments from day to day, after the term is once opened by the judge; nor, if there should be, that they should be recorded, in order to preserve the authority of the court to perform its functions. The court may, in fact, not adjourn during the whole term, but be always open; though, for the convenience of suitors, an hour of a particular day, or of the next day, may be given them for their attendance. If the record state the time of doing an act, as the statement is unnecessary, so it is harmless surplusage, unless the day be beyond the period to which the term legally extends. Take this record either (123) way, then, and we think it well enough. If it import that the court did not adjourn because no adjournment of the preceding day is set forth, then it is to be taken that the court was kept open, as it lawfully might be. If, on the other hand, the entry of the time, *Page 91 "Wednesday, 15 September, 1841, the court met pursuant to adjournment," imports that there had been an adjournment from a former day to the latter, there is no error, provided the latter day be not beyond the term; for the court, although not bound to adjourn, may do so from one day to another within the term. Each day mentioned in this record is within the term; for the Fall Term of Anson Superior Court continues two weeks if the business requires it. Rev. Stat., ch. 31, sec. 16.
The next point made is that the order of removal was not warranted by law, because there were three indicted, and the trial of only two removed; so that the whole cause was not removed, as it ought to have been. If the prisoner could be allowed an exception against his own action, yet it seems sufficiently clear that there is no error in the point supposed. The record shows that as to Gatewood, the third party, the prosecution was ended by a nolle prosequi, and, therefore, it pended only against the two whose trial was removed. It is true, the order and entry of his discharge were made on a day subsequent to that of the order of removal. But every act of the court, whenever made, has its efficacy from the first moment of the term; and during the whole term the record is in the breast of the judge, and an order may be modified or any new order made that may be requisite to give validity to one before passed. But we have no doubt that where two are indicted, the trial of one only may be removed. However it may be in cases of dependent guilt, or although it may be in the discretion of the court to refuse a removal as to one, without all, yet in ordinary cases the court undoubtedly has the power to allow such a removal. The charge is several; and the defendants may be tried separately in either court. There is no reason, therefore, why there may not be a separate removal. In neither case is the record removed. It remains in the original court, and the trial, whether of one or all in another county, is on a transcript. The removal does not change the mode of trial; but, for the purpose of (124) impartial trial, it is sent to another county, in which jurors of unbiased minds may be had. That may be necessary as to one of the accused and not the other; and, therefore, the court ought to have this power. Such we know has been the practice. An instance is found in S. v.Lewis, 10 N.C. 410. The facts of that case were that the indictment was found in Wake against three, two of whom removed their trial to Franklin, and one of them again removed his trial to Warren. The third was tried in Wake, and he and the one who went to Warren were both convicted and executed. The cases of Carter and Snow, and S. v.Mills, 13 N.C. 420, furnished other examples of this practice; and of its propriety we entertain no doubt.
Another exception is that the past tense is used in several parts of the record, and so it is historical, and not a memorial of the acts of the *Page 92 court made as they occurred. It must be owned that in strictness a record ought to be expressed in the present tense, because the acts of the court are supposed to be recorded simultaneously with their adoption. We are, therefore, fully sensible of the philological and legal propriety of the records speaking in presenti, and we are aware of Perrin's case, 3 Saund., 393, in which, upon a writ of error, the judgment was reversed because in the award of the venire facias the record stated that "the sheriff was commanded," instead of "is commanded." Nevertheless, we feel obliged not to reverse the judgment upon this ground. In this particular case we see that although the preter-perfect tense is used, yet that the words cannot relate to any period antecedent to the time of inserting them in the record; and, therefore, they must be taken in the sense of the present tense. There was no continuance; but the case arose and was disposed of in Anson Court, all in a single term. That term is one day or the same as one day; and in respect to anything during it there is, therefore, no prior or posterior time. But the Court is not disposed to put the decision on that peculiarity, since we know the question must arise in cases in which there were continuances, and, therefore, it ought to be put on some general ground at once. We (125) have, therefore, to state that we conceive ourselves bound by the most imperative considerations not to give to this grammatical inaccuracy the effect demanded. Were we inclined to an opposite opinion, we should be compelled to adopt the one we have, by numerous, we may say innumerable, precedents, and by a proper regard for the public security. Every one knows the defective professional skill of nearly all the clerks of our multiplied courts, and that the evil is constantly on the increase; and must be sensible that if such an objection were sustained, crimes would go altogether unpunished, and would have gone so for many years past. Indeed, this is the common form among us. We scarcely recollect a record coming to us in some part of which the past tense did not occur. Many judgments of death have been affirmed in this Court on such transcripts; and it is too late to listen to the objection.S. v. Lewis, supra, furnished an example to our purpose. After the usual commencement, the record proceeds: "A bill of indictment was found, etc." All the considerations which long usage can furnish, and all the force which multiplied judicial precedents, hitherto unquestioned, can possess, unite to impose on us at this day the obligation not to allow this impediment to the course of justice. In reality, however, there can be no hesitation as to the sense of the record. It purports to be a relation by a tribunal of its acts at a certain term, begun and held on a certain day, and to have been drawn up during that term. Although it may be said therein "it was ordered," no one can misunderstand the meaning. The inquiry is, When was it ordered? and the *Page 93 answer is, During that term. It must be so understood; and if it was at any period of the term, it is sufficient.
Some objections are also raised upon the transcript from Richmond. One is that it also uses the past tense; and that, of course, falls with the preceding one. Another is that the record states the court not to have begun on the proper day, namely, the third Monday of September, but makes it begin the proceedings at the fourth Monday, without any adjournments from the third. But this is a clear mistake of the (126) law fixing the terms of that court. In the spring the statute provides that the court shall be held on the third Monday of March; but in autumn it is on the fourth Monday of September.
By this record it appears that the two prisoners, Martin and Waddill, were put upon trial together; but the transcript does not set forth the verdict as to Waddill, but only as to Martin, the present appellant. For this cause, also, it is said the judgment is erroneous. But we do not perceive how this prisoner is concerned in that matter. It were well if the clerk would send a full transcript in every case, and not take on himself to judge which parts of the verdict and judgment are material. But we cannot assume that the whole has not been sent; and, on the contrary, unless a diminution be suggested, it is taken that the transcript is full and correct. If so, the conviction of this prisoner is not annulled by the failure of the jury to render a verdict as to the other party — which, indeed, is an acquittal. The court was bound to pass sentence on him whom the jury did find guilty, since the jury has responded fully to the only issue joined between the State and this prisoner.
Upon the whole, the Court is of opinion that the judgment of the Superior Court of Richmond was warranted by the record, and directs that this opinion be certified to that court, that the judgment may be carried into execution.
PER CURIAM. Ordered accordingly.
Cited: S. v. Carroll, 27 N.C. 142; S. v. King, ib., 206; S. v.Stewart, 31 N.C. 344; S. v. Rash, 34 N.C. 386; Brown v. Patton, 35 N.C. 447;S. v. Perry, 44 N.C. 333; S. v. Curry, 46 N.C. 285; S. v.Hogue, 51 N.C. 384; S. v. Douglass, 63 N.C. 501; S. v. Haynes, 71 N.C. 84;S. v. Smallwood, 75 N.C. 106; S. v. Baxter, 82 N.C. 606; S. v.Speaks, 94 N.C. 875; S. v. Hensley, ib., 1035; S. v. Pankey, 104 N.C. 845;S. v. Lucas, 124 N.C. 827; S. v. Exum, 138 N.C. 618. *Page 94
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