By the Court.
Uumpicin, J.,delivering the opinion.
We do not deem it necessary or proper to discuss, separately and at length, all the grounds taken in this writ of error.
The defendant has been tried and convicted as principal, in the second degree, for the murder of Claiborn Vaughan, one Isaac Freeland having been condemned and executed as the actual perpetrator of the deed.
To better understand the questions of law in the case, it is well to consider, first, whether the verdict is contrary to the evidence. I will state the testimony briefly, omitting all minor facts and circumstances which do not materially affect the case:
. In August, 1858, there was a gathering in Forsyth county, at a place called Wild-Cat Court Ground. Amongst the crowd, thus assembled, there appears to have been some half dozen South Carolinians, and they constituted what is called in the evidence, the Buise crowd. The accused belonged to what was designated as the Freeland crowd. Claiborn Vaughan, the man killed, was a South Carolinian. The defendant and one Abraham Buise had had a fight late that evening, in which McGinnis got the best of it. Indeed his whole conduct, on that occasion, was that of the bravado and the bully; and notwithstanding Isaac Freeland acted a more prominent part than McGinnis in the subsequent scene of the tragedy, yet it was not so in the beginning, for at the Court Ground, and up to the time of the departure of the Buise party, the conduct of Isaac Freeland was rather that of a peacemaker than .otherwise.
It is important to ascertain the feelings of McGinnis toward the Buise crowd. For although there appears to have been no personal ill-will entertained by him toward Claiborn Vaughan, still the proof demonstrates that his hostility extended, to the whole of that crowd. In the course of the altercations and scuffles between Abraham Buise and himself, it was agreed that they should drink together and drop their quarrels;, and yet while in the act of drinking, McGinnis continued to repeat, “drink your damned Carolina liquor;” *259and this is the first development of the enmity toward that party, as such. Again: when Abraham Buise refused another fight with him, and was about leaving, McGinnis said, “If you don’t leave I will kill the last damned South Carolinian that is of you.” Here the spirit of the partisan had got the mastery over all personal likes and dislikes; and this is no new phase of human nature — with all associations it is enacted daily before our eyes. The Democrat and the American will each forget, in a day, the friendship of a long lifetime, so soon as his party blood is boiling. After such a declaration or threat as that just quoted, it is needless to invoke the former difficulties between ’ McGinnis and some of the Freeland" crowd, or the kindly relations which had subsisted, down to the morning of that fatal day, between himself and Claibom Vaughan.
The Buise party left, all in the right direction for their respective homes. Abraham Buise turned out of the main road to a spring to get a drink of water, while these, McGinnis and the opposite party, started in the same direction, but g-oing directly from their respective homes. They began to curse the Buise party, telling them “they had better go home, for that they were all run from their county for stealing or forgery, or some other damned meanness.” Old man Buise replied to McGinnis, “that he was a damned old penitentiary convict.” And from this response, we gather that McGinnis was the spokesman and leader of his gang.
The Buise crowd proceeded some seventy-five or one hundred yards and halted, one of them returning to get the shot-bag he had left at the spring, and old man Buise’s bridle. The Freeland crowd went back to the Court Ground. Soon they were observed coming back with a torchlight, shouting and singing like drunken men: “Walk, Tom Walker, walk away, we’ll make the damned South Carolinians walk away.” The Buise party set off and got' some quarter of a mile ahead. The pursuing party, after momentarily halting, some forty yards distant, approached them rapidly. One of the witnesses testifies that it was McGinnis who exhibited a wound upon his head and asked several if they had stricken him. But the weight of the evidence is, that it was Isaac Freeland who made this inquiry. When Isaac Freeland interrogated old Wm. Buise about the matter, he struck him one or two blows with his stick, when he, and most of his crowd fled and concealed themselves.
*260The pursuing party had passed Claiborn Vaughan upon his horse in the road, and after the affair between Isaac Freeland and Wm. Buise, the former returned to where Claiborn Vaughan was, and addressing him as Wiley Vaughan — who was -in the company — he said: “Is this Wiley Vaughan, the rascal who struck me with a stick?” Claiborn Vaughan replied : “I am not Wiley Vaughan, but Claiborn Vaughan.” Isaac Freeland said: “You are a damned South Carolinian, and with that crowd.” Claiborn Vaughan answered: “I am a South Carolinian, and with that crowd, but took no part in their fighting scrape.” Isaac Freeland retorted: “We take in all South Carolinians,” or “it is South Carolina blood we are after.” Both expressions may have been used.
I Ahd now the fatal catastrophe ensued; Claiborn Vaughan was stricken down; whether he was dismounted at the time, or was knocked off his horse, is not certain. And now the shout of. encouragement was heard: “hurrah, Freeland! hurrah, Freeland!” Claiborn Vaughan cried: “Boys, I’m murdered.” Next, “murder, murder,” the last wail in a choking voice, as his life-blood was fast ebbing out to glut the vengeance of an infuriated mob ! Isaac Freeland, with a callousness without a parallel, said: “are you dead, God damn you, old man,” or “old fellow!” McGinnis was there all this time.
After Isaac Freeland had left his victim, McGinnis being near, some noise was heard like scuffling or, as one of the witnesses described it, as if some one was knocking or kicking the body of another. When McGinnis joined his crowd, and the question was. asked if there was not some fighting back there where Claiborn Vaughan was murdered, he replied, “no, there was nothing wrong,” or “nothing the matter.” The last sight seen of Claiborn Vaughan that night, he was on his all-fours.
For the sake of our common humanity, I shall assume, in this opinion, although there is strong testimony to the contrary, that after the brutal butchery of the unoffending man, by Isaac Freeland, that no more violence was inflicted upon his person. He was stabbed in thirteen places; the jugular vein being almost cut asunder, and done, probably, with the knife of Isaac Freeland, while his helpless and imploring victim was prostrate on his back, and his butcher *261a-straddle of him. The wounds upon the body of the deceased, as well as the blood upon the pantaloons of Isaac Freeland, justify the foregoing supposition. There could be no motive for stamping one even thus pierced and hacked to pieces, except as we would a slaughtered swine or beef-cattle, to drain the last drop of blood from the body.
So much for the evidence in this case. In the opinion of this Court, it fully authorized the finding of the jury, that the defendant was present aiding and abetting in this horrible homicide. If it be asked what motive had McGinnis in aiding and abetting in killing Claiborn Vaughan, I reply, what motive had Isaac Freeland for killing him? Did the Court err in the administration of the law in this case?
1. It is assigned as error, that the Court admitted evidence of the quarreling and fighting at the Court Ground on the day preceding the killing.
The answer to this complaint is twofold: In the first place, it was necessary to let in this proof in order to understand the state of feeling which actuated the various persons who were engaged in this transaction, and which finally separated them into two distinct crowds. Testimony had already been admitted, not only to show the absence of any bad feeling on the part of McGinnis toward Claiborn Vaughan, but also to establish that difficulties had previously existed between Mc-Ginnis, Freeland and others on that side, and which continued down to the day of the homicide. It was right and proper, then, to prove how all these previous relations had been merged and forgotten, as manifested by the occurrences of that day, and how new combinations had, for the time at least, taken their places.
But, secondly, from the first difficulty between McGinnis and Abraham Buise, until the curtain fell over the gory corse of Claiborn Vaughan, it was one continuous controversy, smothered awhile, occasionally, and then breaking out with renewed violence, and spreading and enlarging at every recurrence, until the Savannah river became the line of division between the parties.
2. It is assigned as error, that, by the direction of the Court, the solicitor-general was compelled to ask the witness, Abraham Buise, a question. We have already held that it is not wrong for the presiding judge himself to interrogate the witnesses. It is not only his privilege to do this, but, we *262apprehend, his duty likewise, whenever he desires to ascertain a fact with a view to the correct administration of the law. If the judge himself may propound questions for the purpose of eliciting the truth upon any given point, he may direct the State’s officer to do so.
3. As to objection to the testimony of Abraham Buise, that, after Isaac Freeland,had left the deceased, when McGinnis lingered behind, he heard, from his retreat by the roadside,
to which he had fled, “a noise like some one was kicking or knocking Claiborn Vaughan,” what was there wrong in that? It is argued that the illustration was too- personal in its application. It was just what it should have been. The witness may have been mistaken. It was for the jury to judge of that.
4. There is but a single ground taken in the motion for a new trial that has any apparent merit in it, and that, we think, is founded in a total misapprehension of the true meaning of-the ninth section of the fourth division of the Penal Code. It is the section which treats *of mvohmtary manslaughter. It declares that “involuntary manslaughter shall consist'in the killing of a human being without any intention to do so ; but in the commission. of an unlawful act or a lawful act which probably might produce such a consequence, in an unlawful manner.” And then follows this important qualification : “Provided, always, that where such involuntary killing shall happen in the commission of an unlawful act, which, inks consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a riotous-intent, or of a crime punishable by death or confinement in the-penitentiary, the offence shall be deemed and adjudged to be murder.”
The charge requested was, that the presumption of malice, arising from the circumstances to which this section refers, was a fact, and one which might be rebutted by proof:
Such is not our interpretation of the Code. Whenever the life of a human being is destroyed, under the state of facts conterqplated by this section, the offence shall be deemed murder, and such is the judgment which the law pronounces upon it. Suppose the life of a human being is destrejad where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart, is not the offence murder? And is not *263this the stem judgment of the statute, wholly irrespective of the past or present relations subsisting between the slayer and the slain ? If I discharge a loaded gun or pistol at a crowd and kill my best friend, is not this murder? Who ever doubted it? Just so where the killing is committed in the prosecution of a riotous intent.
If two or more persons assemble in some public place, and having prepared a balloon, seize and fasten to it the first passer-by and cause it to ascend for the amusement of the multitude, and by some casualty death ensues, is it any defence to allege and prove that the rioters were not actuated by any personal ill-will toward the victim of their reckless sport ? On the contrary, the Code declares that each and every one concerned shall be guilty of the crime of murder, and, upon conviction, shall be hung by the neck till they are dead. It refuses to show pity to those who were deaf to the appeals for mercy and the tortures and sufferings and dying agonies of others.
The instructions of the Court were, far more favorable to the prisoner than he was entitled to under the law. The riotous intent of this Freeland crowd, to perpetrate an unlawful act, was fully and satisfactorily established. What their precise purpose was we are left to conjecture. Perhaps they had no very definite plan themselves. It was to* chase away and beat, or otherwise maltreat the South Carolinians, and to use their own dialect, to take their blood — and most wantonly and wickedly did. They imbrued their hands in the life-blood of an unoffending man. I say their hands, for the hand .of one was the hand of each and all. It is immaterial who inflicted the mortal wounds. The rest were standing around hurraing their comrade, and by their presence frightening off and keeping away the friends of the deceased, who might, but for them, have come to' Kis rescue. All "are, in the eye of the law, equally guilty, and all are like punishable.
We concur with the'Court, that this conviction was not founded upon circumstantial evidence, and that he had no discretion as to the mode of punishment.
The execution, we hold, should have been under the Act of 1859.
*264JUDGMENT.
Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be affirmed, except as to the public execution of the prisoner..