after stating the facts: The above statement gives the direct evidence of all the living persons who saw the occurrence, and presents the case sufficiently to a proper understanding of the court’s decision.
In developing their case before the jury, the prisoners proposed to prove by the witness; White, one of the prisoners, that his brother, the other prisoner, asked the witness to go with him to Sherrill’s to help him persuade Sherrill to marry the witness’s niece, and that the witness informed his brother he would go with him for that purpose, and there was no agreement or conspiracy to use force or violence on Sherrill if he declined. To this testimony the State objected. The objection was sustained and the prisoners excepted.
We are of opinion that this ruling was erroneous and the evidence should have been received. The argument to sustain the objection was put on the ground that the proposed testimony was a mere declaration of the prisoner in his own favor, and as such was incompetent. This was no declaration of the prisoner, but his sworn statement in a matter relevant to the issue. The purpose of' the prisoner in going to the home of the deceased, in some aspects of the case, was very
Thomas White’s evidence:
Q. You shot him in the back of the head when you could have caught and held him ? A. I could have caught him.
Q. You say you did not want to hurt him; then why didn’t you catch him and keep from hurting him — two great large men like you were? A. Because he attacked us.
Q. You were mad then? A. No, not mad.
Q. Not mad, and yet you preferred to shoot him in the back of the head instead of holdina' him ? A. I shot him bePage 717cause of tbe fight on band. My brother was not struck at all; neither of us hit.
Q. And yet you shot and killed young Sherrill ? A. Yes, I shot once, and I do not know how many times my brother shot.
Nor is there any well considered principle of manslaughter to which the conduct of the prisoners could be reasonably referred. It is contended first that there was a fight between the parties and that the homicide should be referred to the anger aroused by mutual combat. It is true that when men fight upon a sudden quarrel, and one kills the other in the heat of passion aroused by the combat, the law ordinarily refers such a homicide to the anger and considers the killing a case of manslaughter. The doctrine, however, has' this limitation: That the combatants must fight on equal terms, at least at the outset, and no unfair advantage must be taken.
In Russell on Orimes, p. 129, it is said: “Where the combat is not an act of deliberation, but the immediate consequence of sudden quarrel, it does not of course come within the foregoing doctrine, yet in cases of this kind, the law may come to the conclusion of malice if the party killing began the attack with circumstances of undue advantage; for, 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, and this more particularly where the attack is made with deadly and dangerous weapons.”
Again, the same author says on page 131: “If after an interchange of blows on equal terms one of the parties on a sudden, and without any such intention at the commencement of the affray, snatches up a deadly weapon and kills the other party with it, such killing will be only manslaughter * * *. But if the party at the beginning prepared a deadly weapon and has at the time the power, of using it in some
And Bailey, J., in charging a jury, in an indictment for malicious cutting, said, among other things: “If persons meet originally on fair terms and after an interval, blows having been given, a party draws in the heat of blood a deadly instrument and inflicts a deadly injury, it is manslaughter only. But if a party enters in a contest, dangerously armed, and fights under an unfair advantage, though mutual blows pass, it is not manslaughter.but murder.”
Accordingly in State v. Ellick, 60 N. C., 450, we find it declared: “If, on a sudden quarrel, the parties fight by consent at the instant with deadly weapons and one is killed, it is but manslaughter, provided the parties fight on equal terms and no undue advantage is taken, for the fairness of the fight rebuts the implication of malice and the law mitigates the offense out of indulgence to the frailty of human nature.” And, applying the principle it is there held, “That where words passed between the prisoner and the deceased who were sitting on a door sill, and the prisoner got up; the deceased then got up and reached his hand inside the door and got a stick, which was a deadly weapon, and as he was turning around with the stick the prisoner stabbed him with a bowie knife, it was held to be murder.” To the same effect is Price v. State, 36 Miss., 531.
In several of the decisions establishing the limitation here stated, the weapon was concealed and mention is made of this fact. But the principle underlying the decisions seems to be that the party commenced the fight with a deadly weapon previously prepared and fought at an undue advantage.
The principle then, by which an unlawful and intentional homicide is under certain circumstances mitigated to manslaughter by reason of the anger aroused in mutual combat, has no application here. The prisoners armed with deadly
Q. And then you shot him not from wbat be bad in bis band, but because be was attacking your brother. A. I saw there was a fight. I did not stop to see wbat kind of a fight.
Q. You shot him in tbe back of tbe bead when you could bave caught and-held him. A. I could bave caught him.
Q. Didn’t you say you didn’t want to hurt him; then why didn’t you catch him and keep from hurting him — two great big men like you ? A. Because be attacked us.
Q. You were mad, then? A. No, not mad.
Q. Not mad, and yet you preferred to shoot him in tbe back of tbe bead instead of bolding him ? A. I shot him on account of tbe fight on band; my brother was not struck at all; neither of us bit.
Q. And just for that, killed young Sherrill? A. Yes, I shot once, and I do not know bow many times my brother shot.”
But Chalmers White never put up bis pistol till tbe fatal shots were fired. Tbe deceased was then standing on his own porch, with one armed man on either side, and not allowed to withdraw from their presence even to go into bis own door — one of tbe men, at least, keeping bis pistol in evidence all of tbe time. There was never any pause in this scene, and not for one instant any change of attitude. Here again tbe conduct of tbe prisoners can receive but one reasonable construction, “Do wbat we demand and do it now, or your life is forfeited.” Any inference, therefore, which depends upon tbe position that tbe deceased was tbe aggressor by bringing on a second altercation, in which be was killed, has no basis in fact and cannot be maintained. And if it were otherwise, if tbe deceased did bring on a second altercation, any assault be may bave made, under tbe circumstances just stated, was entirely insufficient provocation to
Q. Did you see anything in his hand ? A. I could not tell what he had in his hand.
Q. Did you see the knife? A. He had his hand thrown back this way (striking attitude), drawn back as though to ■strike. I could not see what was in his hand.
Q. Was there anything in his hand? A. I did not know what he had in his hand: I thought there was something in his hand; I could not tell what it was.
Q. Couldn’t you have seen the flashing of a knife blade ■as he drew back to strike ? A. If was dark and cloudy. I •could not see. He could have a knife and I could not have ¡seen it.
Q. Will you swear that be had a knife ? A. He bad something ; I could not tell what it was.
Q. Was it long or short? A. I do not know. I can’t tell whether it was long or short or anything about it; it was something.
Q. Was it black? A. I can’t tell. I cannot describe what it was.
And Thomas White testified: “I had side-stepped and kept in a direct line with Sherrill, because I did not know what was going on at that time, nor what he was going to do. He continued to advance on my brother and drew back as if to strike. At the moment he did that, he sprang forward, and that put him just in front of me, or diagonally in front. I drew my pistol and we both fired about the same time. He had his hand in a striking position. I do not know whether he had a pistol or not. I could not see whether there was a knife in it or not.”
The mother of the deceased said that the deceased never raised his hand except to ward off the pistol. But, put it as the prisoners claim and on the facts of this case as disclosed by the testimony, suppose he did raise his hand as if to strike and was shot down, both prisoners firing at the same time. This was no such provocation as the law deems adequate" to reduce the grade of this offense.
In Clark on Criminal Law, p. 197, it is said: “Voluntary manslaughter is where the act causing death is committed in the heat of sudden passion caused by provocation. The provocation must be such as the law deems adequate to excite uncontrollable passion in the mind of a reasonable man. The act must be committed under and because of the passion.” Again at page 198: “Intentional killing is manslaughter if it is committed under and by reason of a passion caused by ■what the law deems sufficient provocation. The law does
To the same effect, State v. Smith, supra; State v. Chavis, 80 N. C., 353.
The suggestion that if there be a reasonable doubt as to which one fired the fatal shot, both must be acquitted, cannot be sustained. The prisoners may have gone to the house without any purpose to kill or do unlawful violence. They had a common purpose and when they drew their weapons they entered on that purpose unlawfully and were so manifestly acting together, one in the aid of the other, that a killing by either, under the facts of this case, would inculpate both.
The court is of opinion that there is no reversible error disclosed in the record and the judgment of the court below was correct.
No Error.