#### STATE vs. MADISON JOHNSON.

"When a deliberate purpose to kill or to do great bodily harm is ascertained, and there is a consequent unlawful act of killing, the provocation, whatever it may be, which immediately precedes the act, is to be thrown uot of the case, and goes for nothing, unless it can be shewn that this purpose was abandoned before the act was done.

There is no such thing in law as a killing with malice, and also upon the ■furor brevis of passion; and provocation furnishes no extenuation, unless it produces passion. Malice excludes passion. Passion presupposes the absence of malice. Inlaw they cannot co-exist.

When the existence of deliberate malice in the slayer is once ascertained, its continuance, down to the perpetration of the meditated act, must be presumed, until there is evidence to repel it. There must he some evidence to shew that the wicked purpose had been abandoned.

This was an indictment against the prisoner for the murder of Henry Beasley. The prisoner having pleaded not guilty, the issue was tried at the Fall Term, 1840, of Wake Superior Court of Law, before his honor Judge Hall, when the jury found the prisoner guilty of the felony and murder in manner and form as charged in the bill of indictment. A motion for a new trial was made by the prisoner’s counsel, on the ground that the jury were misdirected by the court. This motion having been overruled, and judgment of death having been pronounced by the court, the prisoner appealed to the Supreme Court.

The following is the case submitted to this courtx

On the trial of the issue, one Ragan, a witness for the prosecution, deposed, that one night in November, 1839, he was at a shop in Raleigh kept by 'himself and one Aaron Johnson, the father of the prisoner. The prisoner, the deceased, one O’Brien and the witness were there. A quarrel arose between O’Brien and the prisoner, who struck O’Brien two blows. They were separated and the prisoner went out. When witness went .to close the door, the prisoner came to the door." Beasley (the deceased) asked the prisoner what was the use of having such a fuss. Prisoner asked him if *355he took it up. He said he did not. Prisoner said he was not afraid of him, to which deceased replied by affirming that he was not afraid of prisoner. And thereupon prisoner immediately raised his arm, and a pistol fired. Prisoner immediately went away; the deceased also went out, exclaiming “ I am a dead man.”

The death of the deceased from a wound then inflicted by the discharge of the prisoner’s pistol was fully proved, and was admitted.

The prisoner examined one Pollard, who deposed that, on the night mentioned by Ragan, he went to the shop to buy some fish. The deceased, who was acting as an assistant or clerk in the shop, went with the witness into a back room of the shop to get the fish. When witness came in O’Brien and prisoner were quarrelling, and when witness and the deceased returned into the shop from the back room, they were still quarrelling; when the deceased told prisoner to behave himself. Prisoner asked the deceased if he took it up. Deceased said he did, and a smart quarrel ensued between them. After some time, prisoner said he would go to bed. Deceased said he should not. Prisoner said' it was hard if he could not go to bed in his father’s house, and took a candle and went into the back room, and was in the act of ascending the stairs, which led to a bed room above, when the deceased went up to prisoner, seized him by the collar, pulled him through the back room and shop to the front door, and pushed him out, kicking him at the same time. As this was done, witness (desirous of getting away from the fuss) got out of the shop and hastened away, and soon after heard the report of a pistol.

Several witnesses deposed that, within a few minutes after the pistol was fired, they heard the prisoner say that he had shot the deceased, that if it was to do again he would do the same thing, and if any person touched him he would shoot him likewise; and. he hoped the deceased would die and go to hell.

Polly Mangum, examined for the State, deposed- that, on the same day, the prisoner was at her house at dinner; said *356he had bought powder and shot, and intended to kill a man that night before the bell rung, and at the same time shewed a pistol. She said to him “ Madison, why are you going to ¿[0 sov> he replied “ aunt Polly is it not a shame that I should have to work all day in the hot sun?” She then asked him whom he intended to kill; to which he replied “ I name no names and value no law.” At the time of this conversation, the prisoner had been drinking but was in his senses.

This was all the material evidence, except to support and oppose the credit of the witnesses, Ragan and Pollard.

The Attorney General admited that if the testimony of Pollard was true, the prisoner was guilty of but manslaughter, but he insisted that Pollard ought to be discredited, and Ragan should be believed, and that upon his evidence the prisoner was guilty of murder.

The prisoner’s counsel commenced his address to the jury, by admitting that, if Ragan’s evidence was true, the prisoner was guilty of murder; and stated to the jury that the whole case therefore depended on the question, whether Ragan or Pollard should be credited, as upon the case as stated by the latter, it was but manslaughter. The presiding Judge here interrupted the counsel, and said he should instruct the jury, if they were satisfied that the prisoner had previous malice against the deceased, and went to the shop on the evening of the homicide, with an intent to provoke a quarrel and revenge himself, he was guilty of murder, although Pollard’s statement should be true.

The prisoner’s counsel insisted that, in order to make this case one of murder, supposing Pollard’s statement to be true, it must appear that the prisoner sought1 the-provocation he received, or that he did not act under its influence; that his being at enmity with the deceased did not make it necessary that he should take more from him than from a stranger or a friend; that the provocation proved by Pollard would reduce the crime to manslaughter, if committed on a friend or stranger, and would have the like effect, when the person killed was an enemy, if he acted under the provocation; that, if the prisoner went to the shop to bring on a quarrel as a pretence for killing, still he would not be guilty of murder, *357if he did not bring on the quarrel, but acted in truth upon the provocation then received, and would not so have acted but from the provocation. And the prisoner’s counsel further insisted that the provocation proved by Pollard was a sufficient and .adequate motive for the prisoner’s conduct, to which it was to be referred, unless by some proper evidence it was shewn that he did not act from that motive, but from something deemed malice, or proof of malice. And the counsel contended that, in this case, there was no evidence, proper to be left to the jury, that the deceased was the object of the prisoner’s threat, supposing Pollard’s statement true, nor that he had malice or ill will against him, nor that he sought or brought on the quarrel, nor that he acted but from the provocation proved by Pollard. v

The Judge, in leaving the case to the jury, after directing them that on Ragan’s evidence, the prisoner would be guilty of murder, and that the provocation stated by Pollard was sufficient in law to reduce the killing to manslaughter, instructed them nevertheless, that, although they should believe Pollard’s evidence to be true, yet if, connecting the testimony of Polly Mangum with the other evidence in the cause, they could collect the fact that the deceased was the object of the threat deposed to by her, and that the prisoner went to the shop with the intention to provoke a quarrel with the deceased, in order to gratify his avowed vengeance, then the killing was murder, notwithstanding the facts proved by Pollard.

Attorney General for the State.

Badger for the prisoner.

The opinion of the majority of the court was delivered by

Gaston, Judge.

After an anxious consideration of this case, the court is unable to find any grounds, on which to pronounce the judgment, rendered against the prisoner, erroneous.

The only error alleged is, because of misdirection of the presiding Judge in his instructions to the jury. It has not been questioned, nor can it be questioned, but that it is the *358duty 0f a judge, who presides at the trial of a cause, whetfaer civil or criminal, to correct every misrepresentation oflaw made to the jury, although admitted to be law by the pnrt¡es or t[íe¡r counsel. He does not preside merely as a moderator, to enforce order and decorum in a discussion addresstp a body, with whose deliberations he has no concern, over whose judgment he is'to exercise no influence; but he is an integral part of that mixed tribunal, whiclr is to pass upon the issue, and, while he is forbidden to give to the jury « an opinion whether any fact is sufficiently proven,” he J 1 J J 1 . 7 is bound to declare and expound to them the law arising upon those facts. Rev. Stat. c. 31, s. 136.

ji is ti.e any cause, cv.Toi-1 cnminai, to correct any misivprelaw am°("e°f aiihoujh'^ beTaw'by*0 the parties O'* the r counsel,

The alleged error is supposed to be, partly in the instruc^0118 actually given, and partly in declining to adopt, as a modification of those instructions, certain positions, for which. , _ . . . 1 the prisoners counsel contended on the trial.

The instruction given, to which objection has been taken, is that part of his Honor’s charge, wherein, after stating that the provocation, testified to by Pollard, was sufficient in law to reduce the killing to manslaughter, he added, “ that, nevertheless, if, connecting the testimony of Polly Mnngmn with all the other evidence in the cause, they could collect the fact, that the deceased was the object of the threat deposed to by her, and that the prisoner went to the shop (where the homicide was committed) with the intention to provoke a quarrel with the deceased, in order to gratify his avowed vengeance, then the killing was murder, notwithstanding the facts proved by Pollard.” In support of-this objection, it has been argued that a jury cannot collect any fact from evidence, unless such evidence will rationally authorise the inference of the fact, that it is error in law to leave it to them to collect a fact, of which no testimony has been given, or none b.ut of a vague and plainly insufficient character. — and that, in the case under consideration, there was no testimony to warrant a finding that the denunciation of the prisoner was directed to the deceased; and, if possible, yet less that he went to the shop with intent to bring on a quarrel to gratify his avowed vengeance. To us it seems that there was e*359vidence fully warranting the jury in inferring the whole fact, the existence or non-existence of which was left to their judg' ment. It was not a vague threat, which the prisoner uttered. He avowed his determination to kill an individual, whom, however, he refused to name, and to kill him that night; and he exhibited the instrument, which he had prepared to carry this purpose into execution; andón that night, with that instrument of death concealed, he goes to the shop of which the deceased has the charge, gets into a quarrel with him, and, at the time and in the manner previously declared, unlawfully kills him. Upon this, the inference that the deceased was the person whom he had previously resolved to kill, becomes irresistible, until there be some facts to repel it. An act was done precisely of the kind which, but a few hours before, he had resolved to do, and prepared the means to execute; and it was done at the time determined on and with the means prepared; and the conclusion ■must be that this was the act so designed, unless thex'e be some indications that a different act of the same kind was contemplated. What was the evidence to repel this conclusion? No more than this: that, immediately before the deed was committed, he received from the deceased such a provocation as would have been sufficient, if there had been no malice, to excite high passion. Admit that this fact had some tendency to weaken the inference, to render it somewhat less conclusive, it, nevertheless, left the question of fact, who was the object of his vengeance, one fit for the determination of the jury. It is to be remembered' that vocation never disproves malice; it only removes the , 1 i j j sumption of malice, which the law raises without proof. malicious killing is murder, however gross the provocation. But it is argued that, as the act of killing in this case followed immediately after provocation, the legal presumption from the act is that it was committed without malice, and therefore it cannot be l-egarded as evidence at all to establish malice. The answer is, that the act’ of killing was not relied on as evidence of malice. There was proof, aliunde, of malice, of a fixed determination to kill. The act of killing, like any other act, corresponding in its circumstances with a *360previously ascertained purpose, is evidence, because of this conformity, to designate the object of the intended action, and therefore, though not proof of malice, it may point out the direction of ascertained malice. If in a crowd, I tread on a man’s toes, it may well be presumed that the act was accidental; but if it appear that I went into the crowd with the purpose to render that insult to some person, then certainly the act would be evidence to point out the individual whom it was my purpose to insult.- In forming a judgment upon the question, how far the fact of provocation weakened the inference that the deceased was the object of the avowed vengeance of the prisoner, there were other circumstances in the case proper to be taken into consideration. It appeared that the deceased had been employed to keep a shop in Raleigh, belonging in part to the father of the prisoner. The only intimation, previously given, of the unnamed object of his enmity is tobe found in the exclamation, “is it not a shame that I should have to work all day in the hot sun?” That night, at the shop, when' forbidden by the deceased to sleep there, he exclaimed “it is hard that I cannot go to bed in my father’s house.” And, after the fatal deed was done, instead of expressing sorrow for a rash act, committed in the heat of passion, he uttered a horrid wish and imprecation, indicative of a deep-rooted hatred against the deceased. These circumstances, connected with the fact that, on the part of the prisoner, nothing was shewn, tending in the slightest degree to designate any other object of his vengeance, seem to point out the deceased as the person, who, supplanting him in his father’s shop, being placed in an easy situation, while he was obliged to toil “ all day in the hot sun,” was regarded by him with the deadly hostility thus avowed, executed and unrepented of.

*359proves imuú only ™esiimp- *e “'.I1"1" the law 4 “"Ik. is murever gross ^“T™70"

*360But admitting that the deceased was the object of the prisoner’s vengeance, it is denied that there was evidence to warrant a finding that the prisoner went to the shop with intent to provoke a quarrel and gratify his vengeance. For reasons, which will hereafter be assigned, we hold that the charge would have been perfectly correct, had it omitted the inquiry as to an intent to provoke a quarrel, but had left the *361question of murder to depend solely on the fact, whether he went to the shop with the intent to kill the deceased. But we are entirely satisfied that the circumstances were relevant and fit to be considered, if the enquiry were material, upon the question of intent to provoke a quarrel. Let us advert for a moment to the most material of those circumstances.

The prisoner has formed a purpose of most deadly vengeance against the deceased, and prepared the means to execute it. With these means concealed,- he goes to the place where the deceased is ordinarily to be found. The first act he is engaged in, after arriving there, is a quarrel with a third person. This quarrel the deceased had a right to suppress, and does suppress. But the prisoner treats this conduct as the taking of a part in the quarrel against him. The next act is an attempt to take possession of the bed-roomj connected with the shop. The case does not state that this was the bed-room of the deceased, and, however probable the presumption that such was the fact, we do not feel ourselves authorized to assume it. But it is not pretended it was the bed-room of the prisoner; it is not shewn that he had ever occupied it, or had any right to occupy it; and indeed the only pretence of right set up by him was, that his father was one of the owners of the shop. Unquestionably the deceased, who represented the owners of the shop and was clothed with their rights, was fully justified in forbidding this assumption of dominion there, and. the perseverance in such assumption was a rude and insulting act. If the deceased, upon this, had done no more than turn him out of doors, the deceased would have bee'n wholly blameless in the transaction. But according to the testimony of Poilard, (which for the purposes' of the present enquiry must'be presumed to be true,) in turning him out of doors, he kicked the prisoner and was instantaneously shot. Now, it is not for us, nor was it for the Judge below, to draw the conclusion of fact, that the prisoner did go to the shop, with the intent to bring on a quarrel and execute the purpose of death, which he had formed against the deceased; but if the intentions of men are to be ascertained by their acts, these acts of the prisoner were fit for the consideration of the jury, to enable them to *362what was his intent. He had resolved to kill; he went prepared to kill; he brought on a quarrel with the object of his vengeance, and in that quarrel did kill him. Can it be questioned that it is a proper enquiry, did he intend what happened?

We have said that the enquiry, whether the prisoner intended to bring on a quarrel, was not a material one for determining on the character of his crime. We take the principle to be clear, that when a deliberate purpose to kill, or to do great bodily harm, is ascertained, and there is a consequent unlawful act of killing, the provocation, whatever it may be, which precedes the act, is to be thrown out of the case and goes for nothing, unless it can be shewn that this purpose was abandoned before the act was done. There can be no such thing in law as a killing with malice, and also upon the furor brevis of passion; and provocation furnishes no extenuation, unless it produces passion. Malice excludes passion. Passion presupposes the absence of malice. In law they cannot co-exist. Murder is the killing with malice aforethonght. If there be killing, and malice aforethought be shewn, both-of the constituents of the crime are established, and the act is murder. Certainly, however, it must be admitted that the most determined purpose to kill may be repented of, and malice, however, deeply settled, may be abandoned. But there must be something to shew that this has been done, before it is presumed. There is a locus, or rather a tempus, penitent-ice allowed, but to avail any thing it must be employed for repentance, and repentance of a criminal purpose is not presumed, if the act be done, which that pur. pose contemplated. It is not therefore the legal presumption, where a provoeation intervenes between the expression of malice and the act of killing, that the slaying was upon passion and not upon malice. The authorities relied upon to establish this position, when fairly interpreted, lay down the opposite doctrine, that the presumption in such cases is, unless there be proof to the contrary, that the killing was upon malice and not upon passion. It is admitted that the passage produced from Mr. East, a very respectable compiler of the criminal law, taken per se, does favor the view pressed by the *363prisoner’s counsel. His languageis, “But where fresh vocation intervenes between preconceived malice and the' death, it ought clearly to appear that the killing was upon the antecedent malice; which may be difficult in some cases to shew satisfactorily, if the new provocation were a grievous one. In such cases, says Hawkins, it shall not be presumed that they fought on the old grudge, unless it appear by the whole circumstances of the fact.” 1 East. c. 5, s. 12. It is to be remarked, however, in the first place, that this passage is the concluding part of a section, wherein he has been considering how far aprovocation received may rebut an implication of malice; and, after laying down the proposition that a provocation, immediately preceding the act, will rebut that implication, “ but that it will be no answer in alleviation to express malice proven,” he proceeds to state that “therefore, if, upon a provocation received, one party deliberately and advisedly denounce vengeance against the other, and afterwards carry his design into execution, he will be guilty of murder, although the death happened so recently after the provocation, as that the law might, apart from such evidence of express malice, have imputed the act to unadvised passion:” and then follow, as a qualification or exception, the words first quoted. Taking, therefore, the whole section, its meaning is this:— provocation will not extenuate a killing to manslaughter, although the act speedily follows upon the provocation, and before the blood, if raised to the boiling point of passion, has time to cool, if, from the advised and deliberate expression of malice it can be collected thatjbe blood was not thus heated by that provocation: but if no act of killing then take place, and an additional provocation be received, and thereupon the person so provoked slay his adversary, it is a fair presumption, unless the circumstances of the fact shew the contrary, that iAissuperaddedprovocation did produce such highly excited passion, and the act of slaying proceeded from this passion. Thus understood, it does not conflict with the' views we have taken. But Mr. East, in this passage refers to Hale and Hawkins, who are justly regarded, notas respectable compilers, but as standard authorities; and what is their language? Mr. East, refers to Hawkins, Book 1, ch. 13, sec. 29, *36430 (page 97.) Hawkins’ word? are, “ If two happen to fall out upon a.sudden and presently agree to fight, and each of them fetch a weapon, and then one kills the other, he is guilty 0p manslaughter only, because he did it in the heat of blood. And such an indulgence is shewn to the frailties of human nature, that where two persons, who have formerly fought on malice, are afterwards to all appearance reconciled, and fight again on a fresh quarrel, it shall not be presumed that they were moved by the old grudge, unless it appear by the whole circu instances of the fact.” Mr. East, refers also to 1 Hale’s Pleas of the Crown, 452. The entire passage in Hale is this: “ If there be an old quarrel between A. and B. and they are reconciled again, and then upon a new and sudden falling out A. kills B., this is not murder; but if upon circumstances it appears that the reconciliation was but pretended or counterfeit, and that the hurt done was upon the force of the old malice, it is murder.” Here we have the true doctrine. The act shall be attributed to passion produced by provocation, and not to the old grudge, if it appear that the old grudge has ceased. One of the cases put by Hale on the next page is, it would seem, decisive of this point. “ If A. challenge B. to fight; B. declines the challenge, but lets A. know that he will not be beaten, but .will defend himself; if B., going about his occasion, wears his sword, is assaulted by A. and killed, this is murder in A.; but if B. had killed A. upon that assault, it had been se def endeudo, if he could not otherwise escape; or bare homicide, if he could escape and did not. But if B. had only made this a disguise to secure himself from the danger of the law, and purposely went to the place, where probably he might meet A., and then they fight and he kills A., then it had been munder in B.; but herein'circumstances of the fact must guide the jury.” If B. had formed no determination to fight, but intended only self-defence, and met A. accidentally, then the assault upon him would have excused the act of killing altogether, if necessary to his own safety, or extenuated it to manslaughter, if not required by such necessity. But if in truth, notwithstanding his declaration to the contrary, he had formed the purpose to fight, and went to the place to execute *365that purpose, such an assault would be no excuse or tion, and his crime would be murder; and the enquiry for the jury is, from the circumstances, was it his purpose to fight, and did he go with that purpose? Such is regarded settled law iti the courts of England at this day, where, in consequence of the numerous cases which call for the exercise of great .legal discrimination, precision in the rule on this subject may justly be expected. In the late case of the Queen v. Kirkham, reported 8 Car. & Pay. 115 (34 E. C. L. R. 318,) where a father stood indicted for the murder of his son, it appeared in evidence that the act of killing was preceded by such an immediate act of provocation, as would extenuate the crime to manslaughter, unless malice was shewn. The crime was committed on Saturday, and testimony was given of threats to kill the deceased, uttered by the prisoner on the preceding Monday and Wednesday. The jury was instructed that the question of manslaughter or murder depended upon the fact, whether these threats were the mere ebullitions of momentary anger, or the expressions of a deliberate purpose; “so that if they believed that on the Monday or Wednesday before, the prisoner used the threats deliberately, then all the quarrelling and wrestling might be dismissed from their consideration.’!

In the observations made upon the objections to the instruction given, we have unavoidably anticipated much that is applicable to the other objection, because of instruction not given. . It will be sufficient for us now to remark, in relation to this objection, that provocation, as such, is not an extenuation of the act of killing, although passion, consequent upon provocation, may extenuate; that the true question is, whether the act be the result of such passion or of malice; and that the relation of good or ill will, prevailing between the parties, is all important in leading to the decision of that question; and that when the existence of deliberate malice in the slayer is once ascertained, its continuance, down to the perpetration of the meditated act, must be presumed, until there is evidence to repel it. What that evidence should be it is hazardous to define.- But there must be some evidence, and, without it, the jury cannot rightfully *366or court give an instruction implying that they may find, a discontinuance of deliberate malice. If a considerable period of time has elapsed, between the last indications 0f the wicked purpose and the killing; if convenient opportunities for gratifying vengeance have passed over, and no use was attempted to be made of them; if an apparently amicable intercourse has taken place between the parties in the mean-while; these, and such as these, would be circumstances well worthy of the consideration of the jury, as tending to shew a change of intention. True, it is in the power of Him, in whose hands are the hearts of his creatures, to effect this change in the twinkling of an eye, and He alone can know with certainty whether it hath or hath not been made. But men, fallible men, obliged to judge of human motives, and yet having no means of judging but by external indications, are compelled to pronounce the unlawful deed the -consequence of the wicked purpose, unless there be some evidence, which their understandings can discern, that such purpose had been relinquished. In the case before us there is one thing, which we can pronounce with certainty. If the prisoner did go to the place, where he killed the deceased, with intent to kill him; and so the jury have found, and so in our opinion they were warranted to find, there was no evidence, however slight, shewing, or tending to shew, that this intention was abandoned, before the act was done. The decision of this court must be certified to the Superior Court of Wake, with directions to proceed to judgment and sentence of death against the prisoner, agreeably thereto, and the laws of this State.

Daniel, Judge,

delivered a dissentient opinion as follows:

The Judge charged the jury that “if they could collect the fact, that the deceased was the object of the threat deposed to by P. Mangum, and that the prisoner went to the shop, with an intention to provoke a quarrel with the deceased, in order to gratify his avowed vengeance, then the killing was murder, notwithstanding the facts proved by Pollard.” This part of the charge is particularly objected to by the prisoner’s counsel. 'He says that there was wo evidence in *367the case, which tended to shew the court and jury, that the prisoner sought a provocation to be given him by the deceased, that he might have a pretext to fire on him as he did, and that the judge should have told the jury, that there was no evidence in the case to support that position taken by the Attorney General. He contends that the cause or motive, that prompted the fire, should have been distinctly left to be found by the jury, with instructions from the court, that, if the cause was the next immediate provocation given by the deceased, by dragging the prisoner through the rooms and kicking him out of doors, then it was only a case of manslaughter; but, if the cause of the fire was upon a former grudge, then it was murder.

One reasonable creature killing another human being, with malice aforethought, is the legal definilion of murder. But for any assault, made with violence or circumstances of indignity upon a man’s person, as by pulling by the nose, if it be resented immediately by the death of the aggressor, and if it appear that the party acted in the-heat of blood upon the provocation, this will reduce the crime to manslaughter. 1 East. P. C. 233. Kel. 135, 4 Blac. 191. Such a provocation, the law presumes, might, in human frailty, heat the blood to a proportionable degree of resentment, and keep it boiling to the moment of the fact; so that the party may rather be considered as having acted upon a temporary suspension of reason, than from any deliberate malicious motive. 1 East- P. C. 258. In case of a legal provocation, strictly so considered, the heat of blood will extenuate the guilt ot the party, acting under its adequate influence, even though he make use of a deadly weapon, Í East. P. C. 258. It is admitted in the case before us, that the provocation given by the deceased, next immediately before the pistol was fired, (as deposed to by Pollard,) would, if true and standing alone, have reduced the killing to manslaughter. It is contended for the State, that the evidence of the witness Mangum and the subsequent killing of Beasley by the prisoner, was strong and sufficient presumptive evidence of aforethought malice against the deceased. I admit that it was sufficient evidence logo to the jury upon that point. But the question still re*368turns, did the prisoner fire by force of the promptings of that aforethought malice, or was he moved to fire by the provocation, just then received? Malice aforethought is the result 0f deliberation; if the prisoner fired, when his blood was boiling by the provocation, when he was under a brevis furorand as it were without reason, the presumption arises that the act was done from the impulse of immediate anger and excitement. If so, it negatives the charge that it was done by the promptings of the aforethought malice. The jury might find a locus fenitentioe, or a cesser oí the former grudge, and that the killing was the rusult of the brevis furor, which the prisoner was thrown into by the immediate provocation. If. A. has malice against B, and intends to murder him, at a time when he can conveniently do it, B., ignorant of the design, but for some illegal cause or other, sets upon A. with such violence, that it becomes absolutely necessary for him to kill B. to save his own life; is tin's murder in A., because there was proof that, sometime before, he had malice against B.? I should suppose, not; and the jury, I think, would be- left to say that the death blow was given uuder the immediate and natural impulse of A. to save his own life, and therefore excusable bomieide. So likewise, in the case just supposed, if B. assault A. by taking him by the collar, and forcibly drag him through two rooms, and then kick him out of the door in the presence of company, and A. instantly fires a pistol and kills B.-, are the jury compelled to say this is murder, because of the antecedent grudge? Can they not say, if they believe the truth to be so, that A. was induced to fire, from the immediate anger or brevis furor, into which he was-thrown from the provocation just before received,-and- that it was manslaughter? It seems to me that the jury would be at liberty so to find, and that they ought so to find, unless it “ clearly appeared” that the prisoner killed under the former 'malice. The case of the Queen v. Kirkham, 34 Eng. C. L. R. 318, so far from being authority against this position, is a case, as it seems to me, in favor of it. The Reporters (Carrington and Payne) give the substance of the case thus: 11 Iu order to reduce the killing of a person to manslaughter, there must.not only be *369a sufficient provocation, but the jury must be satisfied that the fatal blow was given in consequence of that provocation.If A. had formed a deliberate design to kill B., and, after this, they meet and have a quarrel, and many blows pass, and A. kills B., this will be murder, if the jury are of the opinion that the death was in consequence of the previous malice, and not of the sudden provocation.” What would the crime be, if the jury should be of the opinion that the death was in consequence of the sudden provocation, and not of the antecedent malice? I answer, only manslaughter. And then is it not a question for the jury to decide, whether the deathblow was inflicted in consequence of the previous malice or in consequence of the sudden provocation? It seems to me that it is. “In every case, where the point turneth upon the question, whether the homicide was committed wilfully and maliciously, or under circumstances justifying, excusing or' alleviating, the matter of fact is the proper and only province of the jury.” Foster’s C. L. 255. In the case of the Queen v. Kirkham, Judge Coleridge begins his charge to the jury, by shewing the distinction between the crime of murder by malice implied in law, from death happening by the use of a deadly weapon, where no provocation had been given, and the crime of manslaughter, where death is inflicted by a deadly weapon, but where a sufficient provocation had been given at the time. He says, that, in the first case, the slayer is cool and must be taken to -have malice; in the other, he has not malice, if he acted upon the provocation. He then proceeds to say, “ If a person has received a blow, and, in the consequent irritation, immediately inflicts a wound that occasions death, that will be manslaughter. But the slayer shall not be allowed to make, this blow a cloak for what he does; and, therefore, though there has been an actual quarrel, and the deceased shall have given a number of blows, yet if the party inflict the wound, not inconsequence of those bloios, but in consequence of previous malice, all the blows will go for nothing. So, in the present case, if there was stab given in consequence of a grudge, entertained a day two before, all that passed between these parties at the very time must go for nothing, for the simple reason that the blow® *370were not'the cause of-the crime.” The Reporters then make Judge Coleridge to say to the jury, “So that if you believe, on the Monday or Wednesday before, the prisoner used the threats that have been sworn to, deliberately, then all the quarrel and the wrestling may be entirely dismissed from your consideration.” The English Reporter or the printer must, in the last quoted part of the charge of the Judge, have omitted these words: “ if the prisoner had killed his son with the knife, in consequence of those previous threats deliberately made.” If the omission, which I contend is made in the report, be not supplied in some way, then the report of the case makes Judge Coleridge contradict himself; for his remarks, just before made, had left the jury to understand, that if the fatal stroke was given from immediate provocation, which the blows given by the deceased had produced, it would be but a case of manslaughter, notwithstanding the antecedent grudge. In this way, the opinion of Judge Coleridge will correspond with what is said to be the law by Mr. East in his Pleas of the Crown 224, and other writers. Mr. East says: “ when fresh provocation intervenes between preconceived malice and the 'death, it ought clearly to appear that the killing was updn the antecedent malice; which may be difficult to shew satisfactorily, if the new provocation was a grievous one.” “In such cases,” says Hawkins, “it 'shall not be presumed they fought on the old grudge, unless it appear by the whole circumstances of the fact.” That Baron Cowyns understood Hale to hold the law to be the same way is to be seen, 4 Com. Dig. (Justices) M. 16. “Though there was former malice; they were reconciled and quarrel upon a new occasion. So if they fight upon malice and are parted, and afterwards fight upon a sudden, it 'is but manslaughter in each case.” He cites Hale’s P. C. 49, for both positions. In such a case, it seems to me, the jury are at liberty to say there was a cesser of the previous malicious intent, and that the presumption was, that the act flowed from a new and a different cause; and if the act flowed from the violent provocation immediately given, it could not flow from the antecedent malice: therefore the killing could not be murder. *371for it lacked the necessary ingredient to constitute that crime, viz: killing with malice aforethought, or by the promptings of aforethought malice. Notwithstanding, I admit that the presumption may be repelled; and if the jury were satisfied that the killing was upon the antecedent malice, it would be murder. 1 East. 232 — 1 Hale P. C. 452. The law, as I have here stated it to be, was so understood by the Judge- and the counsel, both for the State and the Prisoner.

To get clear of what seemed to be the- recent provocation, the counsel for the State insisted, that the prisoner sought what was done by the deceased, as a pretext or cloak to fire upon him and kill him. We are now called upon to review th.e charge of the Judge upon this particular point in the case, under all the facts that had been proved by the two witnesses, Mangum and Pollard. Whether- the prisoner sought a provocation to be given by Beasley, that he might kill him, was the turning point of life or death in this case. Where is the evidence that the prisoner went to the shop with that view, or that he sought a provocation to kill him? They'never before had even angiy words; the shop was a tippling shop, and belonged in part to the prisoner’s father; the prisoner loved ardent spirits; was it not natural, then, that he should go there to gratify his propensity for drink? The prisoner’s being at the shop that night is, then, reasonably and naturally accounted for. What next? The prisoner and O’Bryan quarrel; who began the quarrel is not stated. Is it remarkable that a man, who was in drink at dinner time and in a tippling shop at night, should be in a quarrel with another man in the same shop? It is well known to be a frequent occurrence; therefore there is nothing, as it seems to me, in this circumstance. What next? The deceased, the keeper of the shop, tells the prisoner to behave himself; the prisoner says “ do you take it up?” Is there any thing remarkable in the fact of a man in a passion, in a war of words with another person, being thus accosted, mak-. jngjust such an answer? I think not. The deceased and the prisoner quarrel for some time; afterwards, the prisoner said he would go to bed; the deceased said he should not; the *372prisoner said it was hard he could not go to bed in his father’s house, (Ragan, the part owner of the house, there and making no objection;) he took a candle and attempted to go up stairs, where there was a bed; the deceased, without any notice to the prisoner to leave the house, illegally takes him by the collar, drags him through two rooms and kicks him out of doors, and instantly the prisoner fired the pistol. And these slight circumstances are left by the court to the jury, to find the life or death fact, that the prisoner went to the shop that night with the design to seek a provocation to kill a man, that he never before had an angry word with. It seems to me that all these things, taken together, do not raise any, or at most, but a very slight presumption of the fact sought to be established, viz: that the prisoner sought a provocation, as a pretext to kill Beasley. I admit that a man may be found guilty of murder upon presumptive evidence. But the presumption must be strong and cogent, not leaving on the mind a rational doubt to the contrary. If the presumption of a material fact be slight, as I think it was in this case, it availeth nothing; it is no evidence in a life and death case, and the Judge should have so informed the jury. He did not; but he left the jury to find a fact, which would raise the crime from manslaughter to murder, upon circumstances which the law pronounces to be no evidence to prove that fact. The words made use of by the prisoner, after he had fired the pistol, in my mind, weigh nothing. They were or might be the ebullitions of a vulgar mind, made in the moment of anger and great exasperation from the recent provocation.

I think there should be a new trial.

Per Curiam. Judgment of the Superior Court affirmed.