dissenting: Tbe deceased, Roby Carter, and tbe defendant lived on tbe land of Charlie Yoncanon. Yoncanon bad given tbe deceased permission, in consideration of having doctored a crippled borse, to ride tbe other of bis two horses. At 10 o’clock one night tbe child of tbe deceased being sick, be went to Yoncanon’s lot, got tbe other borse and went for some medicine. Yoncanon being from home, bis wife roused tbe «defendant, who went down tbe road some 30.0 yards to tbe bouse of tbe witness Bynum Banner, 'who testified that be bad beard tbe borse pass going off; that soon tbe deceased rode up on bis return, when tbe defendant said, “Halt, there! throw up your bands!” three times, and fired. Tbe deceased said, “Quit that”; tbe defendant again said “Halt, and throw up your bands!” three times, and shot a second time, and tbe deceased again said “Quit that”; then tbe defendant fired a third time.. Tbe deceased then said, “You have killed me,” and added, “Why did you shoot me?” Tbe defendant said, “I am sorry I shot you. You ought to have told me who you were. You ought to have stopped when I called to you.” It was a moonlight night,
*399Linville Aldrich testified that while lying on the bed wounded, the deceased said to the defendant, “You ought not to have shot me.” Defendant said, “You ought to have stopped and held up your hands when I called to you,” to which the deceased replied, “You shot me twice after I told you it was Roby.”
Sam Aldrich testified that the deceased said at that time, “Bailey, you ought not to have shot me,” to which the defendant said, “You ought to have stopped and held up your hands.” The deceased replied, “You did not halt me until after you had shot twice. I told you it was Roby, and told you not to shoot.” The defendant did not deny this statement then, nor in his evidence on the stand.
The defendant testified in his own behalf that he “heard the horse coming, walked out in the moonlight to the fence, did not recognize the man with the horse, told him to halt and throw up his hands. I had no reason to shoot, but he hept riding,' and I shot. Did not shoot to hit him. He said ‘Quit that.’ I hollered to him to halt and throw up hands again. He was getting a little by me. He twisted around and had a bottle. I thought it was a nickel-plated pistol. I shot again, and he either fell off or jumped off. He said, ‘Don’t shoot again; it is Roby.’ I was a little afraid of him, but I went to him. He said he was shot, and I helped him up. I did not shoot to hit him at first, but just thought he would stop.” On cross-examination he said: “Can’t tell why I fired the first two shots; had no reason; fired with the expectation of him stopping; had the butt of gun on fence and fired straight up.” When asked by the solicitor, “Why did you fire?” the defendant replied, “Why didn’t he stop?” He then added: “The horse was trotting all the time. I did not shoot to hit him until he flourished the bottle, and I thought it was a nickel-plated pistol.” The deceased died next day at noon.
The deceased was in no fault. He'took-the horse by permission of the owner and went for some medicine for his sick child. On his return home with the horse, the defendant, according to his own account on the stand, was on the side of the road and told him to halt and hold up his hands, and fired twice because he did not, and then he says the deceased “flourishing” a bottle *400be thought was a pistol, he fired and killed him. The two Aid-riches testified that the deceased said to the defendant that he told him who he was and told him not to shoot, twice, before he was shot fatally, and that the defendant did not halt him until after he had shot twice. The defendant did not deny this conversation on the stand.
It appears from this evidence that the deceased was doing no unlawful act, and that the defendant shot him because he did not halt when told to do so by the defendant, and that he was unarmed. The defendant admitted on the stand that after each of the first two fires the deceased told him to “Quit that.” If at this point, after being fired upon twice, the deceased had been armed and had fired back, the jury might well have acquitted the deceased upon the ground of self-defense. And if the defendant had then fired in return and killed, he would at least have been guilty of manslaughter, because he was in the wrong and brought on the affray. Certainly the condition of the defendant is no better when the deceased did not fire, was indeed unarmed, and the defendant does not allege even that the deceased pointed the bottle in his direction, but merely says that the defendant “flourished” it.
His Honor was right when he told the jury that “if they found beyond a reasonable doubt that the shot fired by the defendant caused the death of Roby Carter and the facts as to all matters in evidence which preceded the moment of the defendant’s firing the rifle the third time were as testified to by all the witnesses, including the defendant himself, who was examined as a witness in his own behalf, then the defendant would be, in law, guilty of manslaughter at least, and it would be their duty to so find.”
Life must be cheap indeed in North Carolina, and there is small risk in taking it, if a man riding along the road on a lawful errand can be halted by another who commands him to throw up his hands, and because he does not stop and hold up his hands, that other fires twice, and then because he supposes, mistakenly, that the man thus illegally assaulted “flourishes” a pistol, can kill him without liability. It makes no difference that the defendant thought the man was illegally in possession of the horse, nor that mistakenly he thought he was also in pos*401session of a pistol. In fact, tbe man was lawfully in possession of tbe borse, and tbe defendant does not allege tbat tbe deceased did anything except failing to stop, telling tbe defendant to “Quit tbat.” Tbe defendant says be fired first two times because deceased did not stop. Halting tbe deceased and firing botb shots were an illegal assault. Tbe defendant could not justify under self-defense, even though tbe deceased bad then returned bis fire. This has been recently fully discussed by Hohe, J., in S. v. Lucas, 164 N. C., 471, bolding tbat “self-defense may not be successfully maintained where tbe prisoner has wrongfully assaulted tbe deceased or provoked a fight resulting in tbe lát- ■ ter’s death.” Tbe conduct of tbe defendant from tbe beginning was illegal. Tbe most tbat can be said is tbat be did not intend to kill tbe deceased until tbe third shot. Having brought on tbe trouble by unlawfully baiting tbe deceased and firing twice to make him stop, when be bad no right to do so, tbe subsequent killing was done “in tbe commission of an unlawful act, and was manslaughter.” 4 Blackstone, 191. ,
To excuse a defendant in such a case as this and give him tbe benefit of excusable or jústifiable homicide, it must clearly appear tbat be himself bad not been at fault. S. v. Clark, 134 N. C., 698; S. v. Brittain, 89 N. C., 481; S. v. Dixon, 75 N. C., 275.
Tbe deceased was in lawful possession of tbe horse, and was bringing him back home. But even if be bad taken tbe animal without permission, and tbe defendant bad killed him unintentionally, when taking tbe borse out of tbe lot, instead of bringing him borne (as tbe deceased was doing), it would have been manslaughter. In S. v. Roane, 13 N. C., 58, Henderson, J., held: “A homicide may be justified when it takes place to prevent a threatened felony, but not when inflicted as a punishment for one already committed.” And be further says: “To justify tbe homicide of a felon for tbe purpose of arresting him, the slayer must show not only felony actually committed, but also tbat be avowed bis object and tbe felon refused to submit.”
In Wharton on Homicide (3 Ed.) it is said: “Though the trespass was against property and tbe killing was unintentional, it is at least manslaughter where a deadly weapon was used,” *402citing S. v. Vance, 17 Iowa, 138. Here tlie killing was intentional. And again, on the same page of "Wharton: “If a killing was done to prevent a felony, however, or in defense of home, property, or of another, but was unnecessary or done with improper force, it was manslaughter only if the act was without malice; otherwise, it was murder.” Here all three shots were unnecessary to prevent felony and no felony had been committed or attempted.
The defendant had no right to slay the deceased, nor to try to arrest him because he thought the horse had been taken off illegally. He was not an officer, and if he had been, he had no warrant. S. v. Rogers, ante, 388. The fact that the deceased was bringing the horse homeward showed that taking him at the utmost was only a trespass. As already said, the prisoner had no right to kill the deceased, even if found taking the horse out of the lot, unless the prisoner had notified the deceased first that he would arrest him, and the felon had refused to submit. S. v. Roane, supra.
It follows that halting the deceased and shooting twice when the deceased was returning home with the horse was unlawful, and if an affray had followed in which the defendant had slain him, it would have been at least manslaughter. The deceased, not the defendant, could have pleaded self-defense. For a far stronger reason under these circumstances, when the deceased did not fire back or even attempt to do so, but merely flourished a bottle, the killing could not be justified as self-defense. The deceased was doing nothing unlawful. The defendant was not an officer and had no warrant. That he thought the deceased had illegally taken the horse did not justify him to halt or arrest the deceased with a shotgun. His mistake in supposing that the bottle was a pistol (if indeed he did so suppose) cannot make the killing self-defense when even if the deceased had fired the defendant would not have been entitled to this defense.
Can human life in this State be taken without liability because one, rightfully going along the road, does not stop when halted illegally by another, gun in hand? And is that other (who is not even an officer) justifiable in slaying because he *403thinks tbe man who does not bait may shoot in return? His Honor was surely correct when he told the jury that if they believed the uncontradicted evidence the defendant was at least guilty of manslaughter.