concurring. In tbe case of State v. Gadberry, 117 N. C., p. 811, (in wbicb tbe statute of 1893, dividing tbe crime of murder into two degrees was under consideration) Judge Avery, in bis concurring opinion, said: “We are not acting as arbitrator’s nor as citizens susceptible to tbe influence of public indignation naturally aroused by sucb conduct as is attributed to tbe prisoner, but as a Court supposed to bold tbe scales of justice too bigb to be shaken in our purpose, by even our own abhorrence of cruelty.” These words of tbe eminent Judge truly characterize tbe thought and purpose of the ideal Judge and every judicial officer should in tbe discharge of bis public duties strive to conform to tbe ideal. The recital by tbe witnesses of tbe circumstances connected with tbe slaying of tbe deceased by tbe prisoner, and tbe excitement naturally produced thereby, I think, led tbe Judge into an error; and that being so it is my duty as a member of this Court to say so regardless of any temporary clamor.
By Chapter 85 of Tbe Laws of 1893, murder was divided into two degrees — murder in tbe first degree and murder in tbe second degree. Murder in the first degree, to be punished with death, is described in tbe first Section of tbe Act in tbe following words: “All murder wbicb shall be perpetrated by means of poison, lying-in-wait, imprisonment,' starving, torture, or by any other kind of wilful, deliberate and premeditated killing, or wbicb shall be committed in tbe perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony shall be deemed to be murder in tbe first degree and shall be to be punished with death.”
Tbe contention of the State is that tbe prisoner killed tbe deceased, not by any of the means or under tbe circumstances mentioned in Section 1 of tbe Act, but that be killed him in a manner and with a purpose wilful, deliberate and premed*863itated; that tbe intent of tbe prisoner was not formed simultaneously with tbe act of killing, upon tbe sudden impulse of tbe moment and at tbe time wben tbe deceased placed bis band upon tbe prisoner’s shoulder. Tbe following is tbe evidence recited from tbe case on appeal: “William Grissom: Was present wben Tom Falls was stabbed; saw defendant there. On tbe way to supper that night I beard two persons fussing; beard defendant tell Frank Parish that be would land him in bell in two minutes if be fooled with him. Witness went on from tbe store to supper at Falls’ borne; went in and started to prepare for supper. They got louder. Then witness went out on tbe steps; was standing listening to tbe fuss. By this time Miss Bertha Falls went in and told her father about two persons fussing out there. Her father was Tom Falls; be came out and as be passed witness be stopped for a moment and walked on. Witness went with him. Went to tbe gin bouse, about 25 yards from tbe dwelling bouse — just across tbe road. As Falls started up tbe steps of tbe platform defendant was standing on tbe platform. Defendant stepped off into tbe wagon and from there to tbe ground. Falls went up tbe steps and asked Frank Parish what tbe fuss was about. Frank said that tbe negro bad called him a son of a bitch — that that was more than be could take from any negro. Mr. Falls told Frank to shut up and go.back to bis work, there wasn’t any use of that.
It was Falls’ gin bouse and Parish was working for Falls. Falls then went down the steps, round tbe wagon to where defendant was. Falls said, “Are you tbe man that has been fussing here with Frank Parish ? and said this a second time. Defendant made no answer to first question nor the second question. As Falls asked him a second time be laid bis left band on defendant’s right shoulder or arm and asked him to come round to tbe light, be wanted to find out what all this *864fuss was about. Just then the defendant stabbed him and jumped back and said “hands off.” Defendant then jumped back two or three feet. Mr. Ealls turned to me and said Re has stabbed me and he has ruined me and he ought not to have done it.’ As Ealls spoke this to witness, defendant ran and Ealls turned and went into his house. Witness left him and phoned for a doctor. Witness was within about two feet of deceased when he walked to defendant. Defendant didn’t open the knife after Ealls got there; he didn’t put his hand in his pocket; from the time he got off the platform till Ealls was stabbed was about five minutes. Ealls spoke to defendant in a kind way. Ealls laid his hand on defendant just to ask him to go around to the light, there was no rudeness about it. Witness saw defendant no more that night. When Mr. Ealls went on the platform his manner was gentle; asked Erank what the fuss was about and Erank said the negro had called him a son of a bitch and this was more than he could take. It occurred the 17th of November, 1898, between 6 and 1 o’clock in the afternoon. Falls lived three days after that. On cross examination witness stated that he went on the platform with Ealls and went back with' him when he went from the platform to where defendant was. Witness saw defendant jump off the platform into a wagon when Ealls started up the steps, saw him step out of the wagon to the ground; didn’t see him while witness was on the platform talking to Parish. Witness and Falls both walked up to defendant. Ealls, before laying his hand on defendant asked him “Are you the fellow who has been fussing around here with Frank,” and he asked “What is all this fuss about, come round to the light and tell me what you are fussing about.” He laid his hand on him just as he asked him to come round to the light. Ealls knew the defendant. Witness has seen' defendant before this time. Parish said to *865Falls that the negro Rhyne had called him a son of a bitch and this was more than he could take from any negro. Defendant was in hearing distance of this remark from where he was when witness got to him. When witness and Falls went to defendant he was 10 or 12 feet from the wagon. Where witness last saw defendant before he found him, was when he was stepping off the wagon, and he was then in hearing distance of the remark of Parish and at the tree he was in hearing distance unless the machinery prevented him. When witness went to defendant he was standing by a tree. As witness and Falls approached from the house Parish and defendant were quarreling. The fuss ceased when Mr. Falls started up the platform. Mr. Falls with his left hand caught the defendant’s shoulder — laid his' hand on his shoulder— arm, rather. Falls weighed 225 pounds or 215, about 5 feet high, 11 inches — probably six feet. He was fleshy, not very active — he was an energetic man — tended to a great deal of business.
W. Z. Ferguson testified that on the 17th of November witness was at home 10 minutes after 8 o’clock; he was 30 or 40 yards from the platform when the fighting took place, not there when the quarrel started; heard quarreling, sounded like it- was in gin house, but never saw Falls when he went down. Witness learned that night that Falls was cut. A short time before that somebody came running by the wagon where witness was, about three minutes before witness heard ladies screaming — not over three minutes and as much as one minute. Witness could not tell who it was running, but thought it was a negro. He was coming from towards the gin house; heard him say ‘Til kill him, I’ll cut his guts out, damn him,” and a good many other words which witness could not understand. He went on by the wagon and wit-heard him down the road — heard his steps and his ness *866voice for 50 or 100 yards. Cross-examined: Witness knows defendant, never saw him there that evening before the boy or man ran by witness. Witness had been there not over 10 minutes. Defendant was working for Boyd. Defendant said, “I’ll kill "him” — words of that kind witness understood. Tie was in a trot or run; he moved by witness; he said “I’ll kill him, I’ll cut his guts out.” Witness heard quarreling; didn’t know who was quarreling; only a few minutes before he had heard quarreling. Parish was cursing somebody, witness couldn’t tell who; don’t think the cursing was as much as five minutes before the running.
Bruce Palls: Was there the night of the 17th of November with Mr. Ferguson. Witness heard some cursing; was all he heard and saw a man running; was all he saw; he was going from the gin; he passed in 5 or 6 feet. He said “I’ll cut your guts out; I’ll kill him, damn him.” Witness couldn’t tell who it was. Never saw Mr. Falls as he went back to the house. Witness was going home from Gastonia. Before witness got to the gin house he heard cursing for 2 or 3 minutes. Stopped at the store and got mail. Cross-examination: Something like 50 yards before witness got to gin house. Tie heard quarreling. Witness thought one of them was Parish; heard cursing and thought two different men were doing it; witness’ wagon was 25 or 30 yards from the gin when the man ran by the wagon. It was about 5 minutes from the time cursing stopped till the negro came by, but didn’t know at the time who it was that passed wagon.
Dr. Sloan: Saw Tom Falls after he was cut, one-half or three quarters of an hour after he was cut. He was cut in the left side in the bowels, 3 inches below the naval. Witness examined the wound. He had a stab wound of the large bowels — the descending; had gone through both sides of the bowels; it had not touched the back wall; deceased was fleshy. *867The blade was in my opinion between 3 and 4 inches in length —possibly not so large. Deceased died on Sunday following. He died of peritonitis caused by that wound. The wound was a mortal stab. Cross-examined: The wound could have been made by a smaller or larger knife. Deceased’s abdomen was pretty thick — a good deal of fat.
J. L. Falls: Was present when defendant was arrested in Rutherford County. It was the following Tuesday after deceased was cut on Thursday before. Defendant was in a negro’s house; he was in a dwelling house; defendant ran out the back door and pulled the door after him. Mr. Jones shot twice after him. After he got around the garden fence he came by witness. Followed him over half a mile before they caught him. Knife shown witness and he says it looks like knife defendant had. Defendant said that the knife they had was the knife with which he stabbed Mr. Falls. Defendant said he opened the knife in his pocket after Falls put his hand on him. Mr. Jones kept the knife. Took that and what money he had. The knife shown witness has a blade three and one-half inches long.
It will be seen that not a particle of the evidence tended in the least, to show that the prisoner had any feeling of malice or even of unkindness toward the deceased until the fatal stab was inflicted. The prisoner had been in a quarrel it is true, with another man — Mr. Parish — an employee of the deceased, but the deceased had taken no part in it; and surely that is not evidence of malice against the deceased on the part of the prisoner. When the deceased came upon the scene the prisoner stepped from the platform into the wagon and from the wagon to the ground. In a short time — a few moments — the deceased walked down the steps of the platform and around the wagon and about ten or twelve feet off saw the prisoner standing near a tree. He approached him *868in tbe darkness with Grissom and another employee close upon bis beels — two feet behind. The deceased laid his hand on the shoulder of the prisoner and said “Are you the fellow has been fussing around here with Frank?” and further “what is all this fuss about ? Come round to the light and tell me what you are fussing about.” The deceased laid his hand on the prisoner just as he told him to come round to the light. I know that the witness Grissom said the manner of the deceased was bind; but it is plain from the surrounding circumstances that his manner was commanding. The deceased knew the prisoner; he had been told about the quarrel between Parish and the prisoner, and his language at the time of coming up with the prisoner meant nothing unless it meant a reproach and contempt for him and the determination to compel a submission of the quarrel to his judgment if not more. The conduct of the deceased was in law an assault upon the prisoner. According to the rules which govern human life in our stage of civilization nothing is, or can be, more offensive to the average person than having the hands of another person laid upon him and being told at the same time to do or not to do a particular thing. And. the law is of universal application and makes no distinction between persons. It is simply idle to attempt to draw any analogy between this case and the case where one person should walk up to another, without a word of warning or threat, and kill that other in a public street or place. In that case the inference would be irresistible that the purpose to kill had been formed before the assailant had met his victim. Here the prisoner was looked for by the deceased and the assault made upon the prisoner.
It is clear then that there was no malice by the prisoner toward the deceased at any time except that which arose in law from the killing, and that there was no premeditation *869to kill and that the purpose to kill arose simultaneously with the assault made upon the prisoner.
We have now to examine the conduct of the prisoner after the killing. It is enough to remark on the question of the flight of the prisoner that such a course might be evidence of the prisoner’s guilt of crime, but it was no evidence of the degree of the crime he had committed. If the language of the prisoner as he ran off had been used before he stabbed the deceased it would of course have been evidence both of malice and of premeditation; but used afterwards it tended to show nothing except that either he did not think he had killed the deceased or that he intended to do so in the future. The evidence concerning the time when the prisoner opened the knife is conflicting. Grissom said “Defendant did not open the knife after Falls got there; he did not puthás hands in his pocket.” According to the evidence of one of the witnesses the prisoner said when he was arrested that he opened the knife in his pocket after Falls put his hand on him. If the prisoner had his knife open in his hands before the deceased came up with him standing under the tree it can not be contended that he had opened it for the purpose of stabbing the deceased for the reasons already given; and if he opened the knife as he said he did, after the deceased laid his hands on him, then the opening of the knife and the stabbing of the defendant was simultaneous with the assault on the prisoner and in neither view was there evidence going to show that the prisoner stabbed the deceased with premeditation and deliberation.
The ease of State v. Dowden, 118 N. C., 1145, has been referred to as a case very much resembling this. If that case resembles this in any respect it is very clearly distinguishable. There were method and artifice on the part of the prisoner in that case; there was a motive — -anger—because he was *870required to get off tbe engine; the time was selected by the prisoner to shoot the deceased — when his back was turned. All such circumstances are lacking in this case. Eor the reasons set out in this opinion I think there was no evidence going to show that the prisoner was guilty of murder in the first degree, and I must concur in the opinion of the Court.