Dec. 1829.

#### The State v. John Merrill,

[-From Iredell.

Provoking language dees not justify a blow, and if an instrument calculated to produce death be used, the slayer is guilty of murder.

Malice is presumed from the nature of the instrument and from the want of a legal provocation, and it is a matter of indifference whether the temper of the prisoner be mild or violent.

Dut as the State has no light to enquire into the temper of the Prisoner unless it be put in issue by him, where proof was received of the Prisoner’s violent temper, it was held per HESDEitsoir & Hale, that as this question may have affected the verdict, a new trial' should be granted.

But Burns', dissentienie, held that as the evidence although improper, could not vary the result, it was useless to disturb the verdict.

The Prisoner was charged with the murder of one Hoover, and on the trial, before his honor Judge MartiN, it appeared that the deceased had hired the prisoner to attend a still — that the Prisoner had been drinking, and while under the influence of liquor, was accused by the deceased of having stolen some cider — that the prisoner upon this provocation, had seized a weapon calculated to produce death, and with it had given the deceased a mortal blow. The Counsel for the prisoner introduced witnesses w ho deposed that he the prisoner, wag a very weak man, but not insane. The prosecuting ofli-cer proposed to ask if he was not a man of violent temper, this question was objected to, but the objection was overruled by his Honor, upon the ground that it was competent for the State to prove the temper of the Prisoner after he had offered evidence as to his understanding. The witnesses were directed to speak of their own knowledge, and not of the general character of the Prisoner. It was then proved that the Prisoner was of a violent temper.

His Honor informed the Jury that malice aforethought was an indispensable ingredient to the crime of murder— *270that it meant a wicked, depraved and diabolical temper, movine: the party either deliberately to kill his fellow, or to kill without a legal provocation. That in cases w]K.rc. the prisoner had a right to use force, as in that of •a parent correcting his child, the exact degree of force necessary to attain the object in view, was not measured with golden scales, but that the like reason did not apply to the present case, as the prisoner had no right to use any degree of force. That if they believed the Prisoner was moved to perpetrate the homicide by the provoking language of the deceased, he was guilty of murder.

The Prisoner was found guilty of murder, and judgment of death being awarded, ho appealed to this Court.

Seawéll, for the Prisoner.-

The Defendant’s Counsel insists there shoúld be a new trial, first, because the Court admitted improper evidence; and secondly, because of misdirection to the Jury. The evidence admitted on the part of the State, was to show the specific fact, that the prisoner was a man of bad disposition. Lt seems to me, that no authority can be required in support of the objection, if we only enquire into the nature of the fact proven. Man in his fallen state, would indeed be a miserable wretch, if he was to be condemned •on account of his state'; he is born with evil propensities, “prone to evil, as the sparks fly up;” and if he was to be judged according to his disposition, not one could possibly escape ruin. But we have reason to be thankful, that such is not his condition in regard to his maker; and I trust, much less is it so with him in regard to his fellow men, who all partake of the same infirmity. The laws of society as well as the divine law7, operate upon the conduct only. It is for not keeping the wicked, depraved disposition within due bounds, for which man is culpable — whether therefore he be of a bad disposition, in reference to what other men generally arc; or whether he be a good man according to the same *271standard ; it is the disposition with which the act is committed, that constitutes his criminality — in other words, it is the motive. But this disposition which character!-zes the man, though always admissible in his behalf, when of course it must be subject to be controverted by the State, by opposing evidence, can in no instance bs shown except by general reputation, where both parties stand upon equal grounds. No specific proof is admissible in support of the opinion of an individual, in respect to what is the general reputation, for the plain reason, that if the fact relied on as the ground of the opinion,, could have been known, it plight have been so explained as to satisfy the witness, or to satisfy the J.ury, that a wrong conclusion was drawn. In every instance the only.,f Omissible proof is common reputation, (1 Terra, 574,) and this kind of counter proof on the part of the prosecution, though warranted by principle, is not resorted to in practice, (2 Starkie part 4, 366.) The evidence offered on the part of the Defendant, must be regarded as for the purpose of showing his incapacity to offend criminally. The law docs not permit as substantive evidence of guilt, the character of any man, however base; whilst on the score of the imperfections of human tribunals, to draw correct conclusions from Jiuman transactions, it indulges the party charged, with such proof to raise a want of probability of guilt; and this proves, that no man is to be convicted, however bad his character be, on slighter evidence, as to the fact charged, than -/.would per se be sufficient to convict any other man, however good his character. The charge of the Judge in this case, seems to have intended to adopt the language of Mr. Justice Foster, in his discourses upon Homicide, yvhere he gives a definition of the legal import of the term malice; which in page 256 he denominates, “a wicked, depraved, malignant spirit.” In page 257, (< a heart regardless of social duty, and fatally bent upon . mischief.” In page 291, “ malitia, the wicked vindic-*272tire disposition,” in the same page again, “the mala mens, the heart bent «pon mischief.” It is not, my intention to offer a single remark, m disparagement of tito jega] attainments of this Judge, as a criminal lawyer; but I must be permitted to say, that in perusing the whole of his discourses upon the criminal law, few if any instances occur, in which he complains against the severity of adjudged cases ; though confessedly there were many, which have excited the sympathy of others. Whilston the contrary', we perceive his complaint against Hawley’s case, Tooly’s case decided by Ld. Holt, the introductory discourse of Ld. Holt in Mawgridge’s case, Tranter’s case by Chief-Justice Zee,” and he doubts the propriety of the decision in Huggefs case, reported by Kelynge ! The objections raised by him against all these cases is, that they are too highly tempered with mercy; and labouring under the influence of these feelings, he has, on the occasions already referred to by the pages cited, given his definitions of malice, which though they may be sufficiently correct to the strict observer, I fear have done much more harm than good, to the profession in general. One of his definitions is, "a wicked vindictive disposition,” — now to the common man, say the Juror in the box, where the Judge has permitted evidence of the disposition of the deceased, by which'it is made out to be wicked and vindictive, and an act of intentional violence is then proved, from which death results, and the Judge in bis charge, accommodated to this definition in words, says, “ that if the act was done from a wicked vindictive disposition, and was likely to kill or do great bodily harm, (page 291, see. 3,) that the case is murder;” that verdicts for murder, will be found against the plainest principles of law. A charge delivered to a Jury in this manner, I say, is without instructing what is meant by a disposition, and would include the case of a party killing with a dagger, being first stricken by the deceased, at least the Jury would understand it so ; for the *273Court has admitted evidence to prove' the disposition of the accused ; that upon the evidence, turns out to be y 1 ' •* 7 wicked and vindictive, and the act done, likely to kill or do great bodily barm 5 by which the case is fully made out, according to the definition given by the Judge.— Again, in page 251, one of Mr. Justice Fosters definitions is, “ a heart regardless of social duty, and fatally bent upon mischief.” Now .whatever may have been the opinion of this learned man, or whatever might have been his meaning of this definition, it may be understood by the plainest rules of construction, to mean, that a deed committed by a bad man, is to be judged differently than when done by a good man. Malice, says the Judge, does not in law mean a preconceived hatred, or ill will towards the party slain, (or to use his own words,) “ is not to be understood in that narrow restrained sense to which the modern use of the word malice is apt to lead one, a principle of malevolence to particulars ; for by the term malice in this instance, the law meaneth, that the fact hath been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, malignant spirit,” page 256, — arid proceeding to the page referred to he says, “and I believe most, if not all the cases, which in our books are ranged under the head of implied malice, will, if carefully adverted to, be found to turn upon this single point, that the fact hath been attended with such circumstances, as carry in them the plain indications of a heart regardless of social duty, and fatally bent upon mischief.” Then, according to his words, if the circumstances show that" the accused possessed a wicked heart, that this wicked heart was fatally bent, that is to say, propelled by irresistible fate, resulting from propensities given by nature, that it constituted the mala mens, the malice meant by the law. For what is the just meaning of the adverb “fatally,” in latin/a-ialiter? It is by order of destiny, fataliter mori to die a natural death, (Ainsworth’s dictionary word fataliter,') *274The definition then, of this distinguished Judge, if we are to arrive at his meaning by a just construction of his words, would be from this passage, that if the God Qp natu,.e imparted a heart regardless of social duty, and so constituted it, as to propel it by its natural construction to commit mischief, which in other words, is fatuity dent, on mischief, that the person thus organized, is to be punished for it — whereas the maxim of law is, that cri-men, non contrahiter, nisi voluntas nocendi intercedat.

The general reference, which in practice, is made to Foster’s Crown L. as the standard in questions of malice and the common error which our Judges have fallen in-' to, vide {State v. Tackel,) I think requires that this Court should give a standard less liable to be misunderstood. The necessity of a rule in cases of implied malice, as Mr. Foster caiis it, is of the greatest importance. This case is of that description, we are not permitted to look into the sufficiency of the proof, therefore this Court will direct a new trial, if any evidence has been improperly admitted $ and for the same reason, if any misdirection is to be found in the charge of the Judge; or if the Judge did not sufficiently explain to the Jury the Jaw on the question, so as to prevent any possible mistake by them. According to the manner in which the question of malice express, and malice implied, has been treated in the books, it would seem as if in fact they were of a distinct character. The truth is, that malice required in murder, is only malice aforethought, with direct proof, or implied from the manner in which the deed is committed ; but in every instance there is to be satisfactory proof of malice aforethought. The law does not punish more severely for killing with a dagger, than with a broom stick $ but denominates murder, every felonious homicide with malice aforethought, — when upon hot words, the parties immediately go into the field and fight with swords, if they fight fairly and one kills the other, it is manslaughter only, Foster 295, But if one commences the attack *275before the other has drawn his sword, it is murder, Ibid. And why is it murder ? Not that the-'instrument ¿was J „ , ‘ likely to kill, for that was the case iu the manslaughter, not as I conceive, that he sought his blood, for that was apparent also in that case $ but because the transaction itself showed that the accused was endeavoring to avail himself of a pretext, in going out.to light — that he was not compelled by the provocation then received, or by the excitement then produced, but was urged by other considerations than those arising from the moment — that in fact, he had previously to this quarrel, unkind feelings towards the deceased, and availed himself of the present opportunity of giving them effect. The charge is a felonious killing ex malicia pre cogítala, in plain English, out of ill will, or an unkind motive before the time of killing thought of, in respect to the party slain, or to some other person intended to he abused or killed, or an intention to commit some other felony. But in every instance, whether by express evidence, or by evidence from the manner in which the deed is done, it is to be made out, that the act done did not result from a state of mind produced by the occasion, when the killing took place, but from a motive previously existing.

I have said that, \ve are not permitted in this case, to look into the evidence, because this Court can only correct any mistake in law. But the evidence in the case on which the verdict was found, shows clearly, the .necessity of proper and full instruction by the Court. It can hardly be supposed, that in the case of two men upon perfect good terms, never having had a dispute, or any previous misunderstanding whatever, who were drinking together, and upon words of reproach, naturally enough accounted for, from the flow of their spirits, one seizes a paddle which happened to be near, and by a stroke kills the other, that the patty killing was induced to do the act by any other motive, that that produced by the occasion ; and if that he admitted, it puts the question of *276murder out of dispute — for I lay down the r.ule to be, without its having an exception, that whenever the act is produced by provocation then given, no matter with what instrument life is taken, whether with a dagger or with a “ little cudgel,” the law is the same, the case is but manslaughter ", for in every case the enquiry is, was the party provoked? Did the act result from the moment, when it was done? I have said, no doubt, much more in the case, than particularly applied to the point to be decided. I have been led to do so, from the conviction I entertain of the impropriety of tiie verdict in this case, believing as I most conscientiously do, that it amounted in law, only to manslaughter. I have been led to make many of these remarks, from the further conviction of the necessity which exists, for this Court to lay down the rule of law. 1 have, under the influence of these feelings, ventured to make this appeal, not with the view of serving this unfortunate Defendant, who is to me an utter stranger, and from whom l have received nothing that could interest me in his behalf,’ but to this Court as the Supreme Court of the State, whose correcting power I consider as closely interwoven with the happiness and prosperity of the State, and as the last citadel to which liberty and life can flee for protection and security.— If my humble efforts shall be the means of bringing this Court to act, and by its decision to correct an error, by which hundreds of my fellow-citizens have heretofore illegally suffered, I shall cherish these efforts as the most pleasing recollections of my life, not that I have prevailed by a judgment favorable to my client, but because life and liberty in their last retreat, have in this Court been protected by the benign influence of the law.

I submit the case.

The cage was argued by the Jlttorneij-General for the State, but the Reporter has no note of his argument.

*277Hall, Judge.

it cannot well be denied, that the circumstances attending the homicide set forth in this re- ** cord, legally speaking, constitute a case of murder; and if so, it is contended with much strength of argument, that the testimony offered in relation to the Prisoner's violent temper, ought not to influence the decision of the case, because if it had been proved- that he possessed a mild and peaceable disposition, it would still be a case of murder, f am not disposed to controvert this proposition. But in the consideration of this case, it must be kept in view, that by tiie constitution of the State, it is declared that no freeman shall be convicted of any crime but by the unanimous verdict of a Jury of good and lawful men, delivered in open Court.

Now if it could be reduced to a moral certainly, that Juries could and would at all times, in the discharge of their duties, strictly adhere to the law which defines murder, the reasoning would be unanswerable. But from the nature of things, this is not to be expected, it is the nature of man to lean in favour of an unfortunate criminal, when he is surrounded with a good character. Our feelings are too often indulged at (he expense of the understanding, whether friendship or hatred be tbe food they feed upon. It is therefore of much importance that the rules of evidence should be strictly adhered to ; one of which is, that evidence of the Prisoner’s general character shall not, against his consent, and at the instance of the prosecutor, be given in evidence against him, unless the nature of the charge renders it necessary. This however is not that case.

I am pretty well persuaded, that it was not the object of the Judge to. impugn this rule. The question, which I think a departure from it, was put upon the heels of one which was asked by the Prisoner’s Counsel, which was intended to establish the fact, that the Prisoner on account of weakness of mind, was not altogether an accountable being. The question asked respecting the *278violence of his temper, related more to the qualities of ^ll’^e!U,t, ant* nature of disposition. I am of opinion* that the Prisoner’s Counsel, by asking that question, did no(: p„j (|,e Defendant’s character in issue. The question that followed did so, to a certain extent. It brought forth the answer, that he was a man of violent temper. This might have had an effect with the Jury unfavorable to the Prisoner, it may seem to be a small circumstance for which to grant a new trial, but it possibly maybe one on which the prisoner’s life depends. The rules of evidence in favor of life, cannot be too closely adhered, to. I am of opinion that a new trial should be awarded.

Henderson, Chief-Justice, concurred!

Ruffin, Judge, dissentiente.

I have endeavored to overcome my own impressions in this case, and accede to the majority of the Court; but I have been unable. I will take for granted, that the evidence of temper ought not to have been received, and yet I think the judgment of the Superior Court right. If evidence, incompetent merely by reason of its irrelevancy, be received, I do not see that the verdict ought to be nullified. If improper evidence is seen by the Court to have had its effect, or is such that it could by possibility have prejudiced the party against whom it is given, a Court of Errors is bound to grant a new trial } because it cannot be known upon what the Jury proceeded. But here the evidence must have been altogether inoperative. If it had improperly proved a fact necessary to the Prisoner’s conviction, or went to sustain the credit of a witness for the State, or to impair the credit of a witness for the Prisoner, or the like, then the verdict ought not to stand.' But the record states a case, in which it is apparent that it could not in reason have had any such effect. It went to the Prisoner’s character and temper. If with a good character or good temper, he would have been better ofij then I would agree that he ought to have a new trial. *279But here the Jury had nothing to do with the character or temper, or the actual disposition with winch the act was done. The law determined that from the circumstances, if the Jury found those circumstances to exist. It is a case of malice implied by the law. If the best disposed, and most pacific man on earth, without provocation, (and words are not provocation,) assaults another with an instrument likely to produce death, and death ensues, he is guilty of murder. The law infers the malice from the fact. It must he so — else there is no rule; and ail is left to the discretion of the Jury. The law infers it, because every iban óf well regulated ,mind is obliged to say, that in every such case, the slayer is a man of dark, malignant heart, of ungovernable passions, regardless of social duty, and bent on spilling human blood. In a case of express malice, or of provocation, the question is for the Jury. They are' to determine whether the accused acted on the provocation on the sudden, or had the particular ill-will. But where there lias been no provocation, or none shown, the only question for the jury is the credit of the witnesses — the perpetration of the fact. It is not put to them, whether the ac-' cused did the act by deliberation and with calm intent, or in a sudden gust of passion. For whether it be the one or the other, in such a case it is murder. For passion is no excuse, unless by reason of ordinary human frailty it was justly excited. Where there has been a killing without a legal provocation, and by means of an instrument fitted for that end, whether the passions were roused or not is immaterial. They ought not to have been. There was nothing which ought to have provoked a sudden transport of anger, and dethroned reason. If the anger did in fact exist, and was of a sudden, yet without reasonable cause, and under the impulse of it, the party killed another, his guilt is not mitigated. Such a rage though ever so sudden, if to he appeased only by taking life, is a brutal ferocity, and the very stale of his *280passions aggravates his guilt. He is too dangerous to live. The safety of his fellow-men requires that he should be cut off from among them. Henee the Jury couj¿ n()t |ja,e been misled in the case before us. The Judge was bound <t:o tell them, that the Prisoner was guilty of murder, if they believed the witnesses. I am not questioning the ri|ht of the Jury to pass on the law of the case, that is, their power. But the Court has a right, and was bound to instruct them on it; and they might follow or not, as they pleased. They have done so here, and Í am not for, disturbing their verdict. For although they may decide. the law, if they choose, that is not to prevent the Court from expounding the law to them. And they were not misled as to the law in this case by the admission of the ovidenre. For in law, the guilt of the Prisoner stands precisely the same, were that evidence struck out of the case, or if his good temper had been proved by a thousand uncoutradicfed witnesses. Indeed, my brethren, I am happy to say, find no fault with the charge of the. Judge; so that the rules of the law respecting homicide are not intended to be altered. We differ only as to the consequence of the admission of the evidence. A Court is not bound to hear irrelevant testimony, but if by a slip it gets in, and cannot by possibility have, in reason or in law, an influence on the trial, I think it ought not to affect the judgment* And X must say, that it cannot have influenced the trial, where in law, the offence is the same, with or without the evidence. It cannot then have done harm.

Per Curiam. — Let the judgment of the Court below be reversed, and a new trial awarded.