#### State vs. Weaver.

VNDICTMENT for the murder of a negro man named Lewis,. the property of Smith, not guilty pleaded; and the trial now came on.

El per curiam.

Hay wood, justice only in court.

I» his charge to the jury. — The nature of the evidence is such as makes it necessary you should have clear ideas respecting the requisites to constitute several denominations of homicide; that is to say, justifiable homicide, manslaughter and .murder ; .for upon this evidence it has been contended for the state that the offence of the. prisoner amounts to murder, by the counsel for. -the prisoner, that iris but manslaughter at most, if not justifiable homicide. So far as the evidence can relate to these offences,justifiable homicide may be defined thus : where the pérson killed, attempts.^ to kill the slayer, and he kills'in his own defence,it is justifiable. Manslaughter is where some great provocation is given, that is calculated to excite the resentment of a reasonable man to' such a degree as to take away the proper exercise of his reason', he kills the aggressor; as if the aggressor spits in his face, pulls ' his nose, kicks him, or the like,- or where blows pass ; in all these cases the blood is heated and the passions j-oused or excited; and the killing under such circumstances, is attributed to human frailty,- and not to a wickedness of heart. Murder is where the homi- '. cide with malice aforethought, which means not whstis.com»-' manly understood, but a doing the act under such circumstances" as shews the heart to be exceedingly malignant and cruel, above what is ordinarily found amongst mankind ; & the wickedness of/ heart is' collected either from the express words and conduct of the party, or from the manner in which the deed is done~in the " first instance, by threatening expressions, former grounds, or schemes to do him mischief, as by lying in wait for him and the like; in the latter instance^ by the excessiveness of punishment, or dangerous'weapon, or means made use of to punish ; as if for a slight offence which deserved only moderate correction, any. man shonld -take up his servant and beat him so excessively as to cause his death; if in such a case for such an offence,, he should beat out his brains with an axe, shoot him with a gun, or - kill him with a sword ; from all these circumstances, it is allow-.,, cd that the k .art is exceedingly depraved and ciuel, and that the *55killing has not proceeded from the frailty of human nature, and therefore the offence is deemed murder. This is the law with respect to a freeman who is killed, but with respect to a slave it is somewhat different; for if a free servant refuses to obey the' commands of his master, and the master endeavour to exact obedience by force, and the servant offers to resist by force m such a case, and the master kills, it is not murder, nor even manslaughter, bat justifiable } much more is it justifiable if the slave actually uses force and combats with the master . — If therefore you shall be of opinion upon examining the evidence, that the deceased actually attempted to kill the prisoner, who was a temporary master, having hired him for a,year, and that the prisoner killed In his own defence, he is justifiable ; if you find the deceased actually used force and was resisting by force when he was killed, the, prisoner is justifiable ; or if he offered to resist by force when he was killed, the prisoner is justifiable. If none of these circumstances are to be found in the case, and you are of ©pinion that the killing with the pistol ivas with malice aforethought, as before explained, then the prisoner is guilty oí murder.

There was verdict for the prisoner of not guilty.