#### STATE vs. HARRY LANE.

If one seek another and enter into af ght with him, with the purpose, under the pretence of fighting, to stab him, if a homicide ensues, it will be murder in the assailant, no matter what provocation was apparently then given, or how high the assailant’s passion rose during the combat; for tho malice is express.

The omission of North Carolina in an indictment found in a court of this State, where the name of the county is inserted in the margin or body of the indictment, is net a cause for arresting the judgment.

"Where the indictment set forth the time of the commission of the murder, in these words: “ On the third day of August, eighteen hundred and forty-three,” without saying “ the year of our Lord,” or even using tho word “ year;” Held that, although this defect would have been fatal at the common law, yet it is cured by our act of Assembly ol 1811, (Rev. Stat. ch. 35, sec. 13 )

The cases of State v Dickins, 1 Hay. 406; and State v Haddock, 3 Hawks 461, cited and approved.

Appeal from the Superior Court of Law of Edgecomb county, at Fall Term, 1843, his honor Judge Bailey presiding.

This was an indictment against the prisoner for the murder of John Bedford. The testimony was as follows : Ben-bury Bradley swore that he was at M. P. Edwards’ on the day of the election in August last, and that the prisoner and the deceased were there — that Edwards’ house has a piazza in front, next the public road, in one end of which he had a room used as a store-room, and there is a piazza also extending from this store-roomalong the side of the house — that there is an entrance into tho piazza in front of the house, and also one into the piazza, which extends along the front of the house — that there are also two doors leading into a large room, one from the front piazza, and one from the side piazza, and a door leading from the front piazza into the store room — that he first saw the prisoner and the deceased in the store room, where Edwards kept his liquor — that the deceased was lying down upon the floor, and the prisoner commenced slapping him very hard with his hand, pulling *114him and cursing him, and telling him to get up — that he continued to do so, until he made the deceased angry — that the deceased then sat up on the floor, took his knife out oí his pocket and attempted to draw it — that before he opened it, the -witness took it away from him — that the deceased then, lay down again — that the prisoner again began to slap him and pull him about as before, and continued to do so, until the deceased got on his feet and went near-the door leading into the front piazza, and then the prisoner pushed him out of the door into the piazza — t.hat the deceased then lay down in the piazza about 15 feet from the door of the store room, and had not been lying there long when the prisoner began to slap him again — that the deceased told him to let Kim alone, that he was not pestering him and did not want any fuss with him — that the prisoner continued still to slap him, until the deceased got very angry, rose, and struck the prisoner with his fist — that the deceased gave the prisoner two or three blows, but the witness could not say that the prisoner returned the blows — that they were parted — that prisoner went to the piazza door post and put one hand on railing and the other on the post, with his back to the deceased — that the deceased came up behind him while stand-in this position, and structr him with his fist or open hand and tried to scratch him — that the prisoner then turn-round, and blows were exchanged between them, and were parted a second time. This witness further stat-that the deceased then went into the large room of the house, and the prisoner stood .at the door leading from the into the piazza — that the witness was near him while standing there, and seeing him rub his fingers, asked him was the matter with his hand — that the prisoner re-that he had cut it foolishly with his own knife, for he it open and it shut up and cut his hand — that, after standing there a short time, the prisoner went into the same that.the deceased had entered. — that the deceased returned into the piazza and into the yard in front of the house, the prisoner went out of the large room into the side pi- and had got out of the door of the piazza, when the *115witness and John B. White met him near that door — that the prisoner, said to them as he met them, “Boys dont see' me, I intend to cut his coat oil” — that they told him, “that would not do, to put up] his knife and quit such as that”— that the witness heard him shut his knife, and he thought he put it in his pocket, but of this he would not be certain— that the prisoner passed by them-as they attempted to go into the door of the side piazza — -that the witness and White had got on the block of the door, when the witness heard the deceased say, “Harry! what in the h — 11 fire dojyou mean?'5 —that the prisoner replied with an oath, “what do you mean ?” — that the witness was'then about 25 or 30 feet from them — that the deceased had met the prisoner at the corner of the house and they engaged as they met — that the prisoner cried out “Part us, boys,” .three or four times — that the witness and White went towards them, and just before they got to them, they parted themselves — that the prisoner met them, and, as he passed, said “he wanted some water to wash his hands,” and passed through the house into the front piazza — that the deceased went towards the road and rested against the paling. — The witness stated that he soon went to him, and, when he got there, he was lying on the ground, and, upon examination, the witness found he was cut under his left breast — that he carried him into the house, and discovered three cuts upon his arm/two in his abdomen, one of which was near his groin — that his intestines came out, and the witness discovered the next day a wound upon his hip — that he had seven wounds -in all,_and that he died the night of the next day. Upon the cross-examination of this witness he stated, that the prisoner was not angry, when he was slapping the deceased — that Edwards, the owner of the house, had requested the prisoner, after he had commenced slapping the deceased, to get him out of the store room — . that the witness the next day saw scratches .on both sidesoi the prisoner’s face, which looked as if an attempt had been made at gouging. Several other witnesses were examined, who corroborated this testimony. One of them stated in addition, .that .when .the .prisoner and the .deceased met -the last *116time, they reached out their hands and took hold of each other afr°ut lke same time — that the prisoner commenced striking the deceased under his left arm, giving three blows, perhaps four — that witness could see the deceased’s right arm, but he caught hold with his left — that after they were separated and the prisoner was coming towards the house, the prisoner called for some water, and said “ he believed that d-d scoundrel had cut his finger.”

The prisoner’s counsel put his defence upon two grounds; first, that the evidence was not sufficient to satisfy the jury that the deceased died of the wounds which he received from the prisoner, and, secondly, if they should be satisfied of this fact, it was contended that it was not a case of murder, but one of manslaughter only.

The court charged the jury that they must be satisfied that the deceased died of the wounds, and that they were inflicted by the prisoner ; that, if they were not satisfied of this, they ought to acquit the prisoner altogether; but if they should be convinced that the wounds which he received caused his death, and they were inflicted by the prisoner, they would then enquire whether he was guilty of murder or manslaughter — thatjthe crime of murder was the unlawful killingof a reasonable creature in being, with malice aforethought, either express or implied — that manslaughter was the unlawful killingof another, but without malice — that if two men upon a quarrel come to blows, no undue advantage being taken on either side, and death ensues, although by a deadly weapon, it would be only manslaughter — that if the prisoner, while engaged with the deceased in the piazza, his blood being excited by the blow he received from the deceased, had drawn his knife and stabbed him, and death had ensued, it would have been manslaughter and not murder— that if, having received blows and scratches from the deceased in the piazza, the prisoner in a very short time met the deceased at the corner of the house, and, being excited by passion and smarting under the blows he had just received, had, in a moment of sudden revenge, stabbed the deceased, it would be manslaughter only — that if the prisoner, when *117be passed the witnesses saying “boys don’t see me, I intend to cut his coat off,” intended nothing but sport or even rna-licious mischief, and did not intend to use the knife upon his person, and when they met they engaged in mutual combat, and in the heat of blood the prisoner stabbed the deceased, so that he died, it would be manslaughter and not murder. But if, at the time he passed the witnesses, he then intended to use his knife upon the person of the deceased, and eiihertake his life or do him some grievous bodily hurt, and when he met the deceased he carried his intention into execution, by giving him several mortal wounds, oí which he died, he would be guilty of murder, although, at the time he did the act, he was excited by passion; and for the purpose of satisfying their minds upon the subject, they should look at all the circumstances of the case.

The jury found the prisoner guilty of murder. The prisoner’s counsel then moved in arrest of judgment, because the words North Carolina were not-mentioned in the bill of indictment.

The bill of indictment was found in Edgecomb Superior Court of Law. The caption was *'Edgecomb county — Superior Court of Law, second Monday of September, eighteen hundred and forty-three.” In the body of the bill, the offence was laid to have been committed “ on the third day of August, eighteen hundred and forty-three,” “in the county of Edgecomb.”

The court overruled the motion in arrest of judgment, and pronounced judgment against the prisoner, from which he appealed to the Supreme Court.

Attorney General for the State.

N. F. Moore, for the prisoner,

contended that the charge of the Judge was erroneous, and moved also that the judgment should be arrested both for the reason offered to the Superior Court, and for the further reason that the time of the commission of the offence is not charged with sufficient certainty in the bill, it being on the “ third day of August, eighteen hundred and forty-three,” without saying “ in *118the year,” or “ in the year of our Lord,” or “ in the year of the Christian era,” eighteen hundred and forty-three.

Ruffin, C. J.

The counsel for the prisoner complains of only one part of the instructions to the jury. It is that, in which his Honor stated, that, if, at the time the prisoner passed the witnesses and said to them, “Boys don’t see me, I intend to cut off his coat,” he intended to kill the deceased, and, when he met the deceased, carried .that intention into execution by stabbing him, -he was guilty of murder, although, at the time he did the act, he was excited by passion. It is said, this instruction was erroneous, because it put the grade of the offence on the existence of an intention to kill, when-the .prisoner was going to the deceased; whereas such an intention is common both to murder and manslaughter, and the enquiry, therefore, in each case is, whether the intention was inspired by malice or deliberate ill will towards the deceased, or was the impulse of sudden passion and heat produced by adequate provocation ; and it is further said, that here the instruction assumed, that such heat of blood had been excited by the previous combat and continued to the fatal strokes. It is thence inferred, that the killing was but manslaughter.

The first step in our enquiry is, whether that be the propej construction of the language of the judge ; whether the excitement of passion was assumed, in the hypothesis, to have been created by the first contest and to have continued to the last. We think it is not. It is to be recollected that there was a.combat in the piazza; andthatthe.case presents something from which it might have been contended for the prisoner, that there was also a sudden mutual combat, when Che parties again rfiet in the yard for the last time. The counsel for the prisoner insisted on the trial, that the of-fence was manslaughter; but whether it was so, by reason that the provocation arose out of the first encounter, or out of the last exclusively, the exception does not explicitly state. It seems to ns, that his Honor could not have understood the former ; and that, in closing this part of his in*119structions, he had in view an excitement that might have risen, or was supposed to have arisen-, subsequently to the prisoner’s passing the witnesses. As to the heat of blood produced by the previous combat, it had just been disposed of in a manner most favorable to the prisoner, by the instruction, that, if the prisoner, in a short time after receiving the blows and scratches in the piazza, and being excited by passion and smarting under those blows, had, in a moment of sudden revenge, stabbed the deceased, it would be manslaughter only. Of the correctness of that position in point of law, we are not called on at present to- express an- opinion. As applicable to the facts in this case, it might perhaps be found, upon reconsideration.to go beyond the law, in allowing a cruel and inordinate revenge, executed with a deadly instrument not shewn openly, for a very trivial offence, and that induced by the prisoner’s own outrages.. But this passage in the charge makes it very clear, that his Honor did not have reference, in the latter part of his observations, to-an excitement of passion from the fight in the piazza ; since that would render the two parts of the charge directly contradictory. For in the one he says expressly, that killing,, while excited by passion from those blows, would be manslaughter ; while, it is attempted to be inferred, that in the other he meant, that the killing was murder, though perpetrated under the sa.me excitement of passion. Besides the particular terms of the part of the charge excepted, to — which, are “although, at the time he did the act, he was excited by passion” — shew that the passion meant was one springing, out of the last contest itself. Indeed, but a moment before, the Court had treated the prisoner as being, when passing the witnesses, free of passion and possessed of deliberation, by speaking of him as then intending some sportive or malicious mischief, short of serious bodily injury, or as then intending to kill the deceased. The fair interpretation, therefore, is that before mentioned — that although something might have arisen, when the prisoner got up to the deceased, to rouse his passion, yet that would not extenuate the homicide to manslaughter, if, when the prisoner passed the *120witneses and went up to the deceased, being before ibis new provocation arose, the prisoner had formed the intention to' kill. And that position we think good law. We do notin-deed perceive anything, that shews the prisoner to have been under a transport of passion during the last rencounter. Far from it. But supposing that to have been so, yet if the prisoner sought the deceased and entered into that fight, with the purpose, under the pretence of fighting, to stab him, it was clearly murder ; no matter what provocation was apparently then given or how high the prisoner’s passion rose during the combat; for the malice is express and was promptly wreaked, and puts the idea of provocation out of the case.

If the prisoner meant to insist, that his blood had not cooled, and that there had not been sufficient cooling time between the first and last meetings, he should have prayed an instruction distinctly to that effect. Having omitted himself to do so, he cannot complain of the omission of the court. But we hold the opinion, that he would not have been entitled to the instruction, if he had asked it. For. although the provocation supposed was recent, yet it does not seem to have wrought any height of passion, suspending reason, even at the very first; and, even if it did, it is evident that it had subsided. It cannot be conceived, that a person, who had received so very slight a hurt from a drunken man, ill return for the aggression practised by the prisoner; who voluntarily terminated the scuffle, and calmly went into the house, giving no external indication of anger; who, in the interval, held such mirthful or guileful discourse with the winesses as to his intentions towards the deceased ; who was advised by those persons to desist, and yet proceeded to the deceased, and, as they met, expressed a desire to be parted, which must have been pretended, and uttered a mock cry of distress during the affray, when he was giving the other party fatal stabs, to the number of seven, and was receiving no serious hurt himself; who of his own accord separated from his antagonist, and had the coolness,instantly after this mortal combat, to call for water to-wash his hands, and frame *121fne falsehood that he believed the deceased had cut his finger: we say, it cannot be conceived, that a person thus ing was under a sudden transport of passion. The vengeance was that of a bad heart and deliberation, and not infirmity from heat of blood. There Ought not, therefore, to be a new trial.

There is also a motion in arrest of judgment for alleged defects in the indictment.

The first is, that it does not appear in the indictment, that it was found in North Carolina, or that the offence was committed in> this State. But the County, Edgecomb, is in the margin and in the body of the bill; and that is sufficient. So are all the precedents in the books. The indictment was found in the Superior Court of Edgecomb, and the Judge must know that he was holding a court in that county of the State, and for the State of North Carolina.

Another objection is, that the indictment sets forth the time thus : “ on 'the third day of August, eighteen hundred and forty three,” without saying “ the year of our Lord,” or even using the word “ year.” This, we think, would have been fatal at common law; and we cannot but express a regret, that there should be, needlessly, a departure from the ancient forms, in a point, in which conformity is so easy and contributes so much to precision, even though it be not necessary. But we are obliged, by previous adjudications, to hold, that under the act of 1811, Rev. Stat. c. 35, s. 12, this indictment is sufficient. Indictments in the County and Superior Courts are now placed on the same ground. In The State v Dickins, 1 Hay. 406, the time was stated in figures, and held good, because the meaning was as well known to the Court as if expressed in letters, and the indictment was therefore “ intelligible,” as required in the act of 1784. So, when the caption was “Fall Term, 1822,” and the indictment charged the time to be “the first day of August in the present year,” it was sustained. State v Haddock, 2 Hawks, 461. It will be observed, that in neither of those cases did the indictment expressly refer to the Christian era or any other epoch ; but they were, neverthe-*122]ess, sustained as expressing a certain time, because the Court understood them as referring to the era of our Saviour, as that is the universal reference in judicial proceedings here, as well as in common usage. This indictment was found in the year 1843, and that being in fact the year of the Christian era, it is judicially intended to mean the year of that era. f

Consequently, the opinion of the Court is, that there is no error in the record; and this must be accordingly certified to the Superior Court.

Per Cura am, Ordered accordingly.