#### STATE vs. BRYANT ALLEN.

In trial?, by a jury where there is an entire absence of evidence, it is the duty of the Judge so to instruct the jury; but if there be any competent evidence, relevant, and tending to prove the matter in issue, although it bo very slight, it is the true office and province of the jury to pass upon it.

Where one witness, on a trial for murder, deposed to facts which tended to prove a legal provocation, though other witnesses contradicted him, the prisoner had a right to. the opinion of the jury upon the question of provocation,, and it was error in, the presiding Judge to say there was no evidence of provocation^

Indictment for murder, tried before his Honor, Judge Caldwell, at tlie last Fall Term of Granville Superior Court.

Tlie prisoner was indicted for tbe murder of one Zachariah Fuller; and on tlie' trial, the following- was tbe testimony introduced oil tbe part of tbe State, and relied on for a conviction, viz-: *

One JMkjoocI testified that in July last, at a barbacue and tax-gathering in Granville county, be saw tlie prisoner and tbe deceased meet near bis cart; they shook bands and passed tbe usual civilities, seemingly friendly; tbe deceased held in bis band a small whip, with which be tajiped both tbe prisoner and himself (witness) in fun; that both prisoner and deceased were drinking. In a short time the deceased moved off, when tbe prisoner drew out bis knife andTemarked, “that if tlio deceased, or any other man should push upon him that day, be would put bis knife into himto which be (witness) said in reply, “you had better not, for you know that you cut a man to pieces some years.since, and you will get yourself into trouble.” Tbe prisoner replied; “I will be damned if I don’t.” This was about 12 o’clock, and' witness saw nothing more of tbe parties for an hour or two. He then saw them down on tbe ground, tbe deceased being on the top, near tbe tax collector. The witness was too far off to see distinctly what occurred, but thought bo saw deceased have both hands in tbe hair of the prisoner; saw no blows pass, but thought be saw tbe prisoner kick at tbe deceased just as be, *258(deceased) was taken off, or got off. He stated that the deceased after getting up, passed immediately around a tree that was standing near; that the prisoner, as soon as he got up from the ground, followed after the deceased,'and the next thing he saw, the prisoner had overtaken the deceased. lie (prisoner) had a knife in his hand, and the blood was gushing out of the arm of the deceased, and heard him say “ I am a dead man.” Some of the bystanders remarked “you have killed him,” to which he replied, “damn him, if he ain’t dead I will kill him.” The prisoner and the deceased were old men, apparently of the same age ; the prisoner the taller, and the deceased the thicker set.

One MoGfehee stated that after dinner on the day of the barbacue, he was engaged at a table in the open air, in taking the list of taxables; that he heard a noise as if of a quarrel between the prisoner and the deceased; that soon thereafter he saw the prisoner and some one approaching his table, and thought that person had hold of the prisoner, though he did not seem to be leading him; that when the jn'isoner came up, he (the witness) remarked to him, he had better go home or he would get into a difficulty with the deceased, to which he replied, “he should not say any thing more, but if the deceased spoke to him he would knock him in the head.” He stated that some half an hour thereafter, he saw the parties agaiii together, near his (witness’) table; that they were dancing, and continued to dance some little time, when deceased proposed to go for a drink, to which prisoner assented, but they did not go. The prisoner then caught the deceased by the head and butted, him in the forehead very severely, two or three times. The deceased then caught hold of the prisoner and bore him back upon the table, and then they fell upon the ground, the deceased being uppermost. The witness said to the bystanders “part them,” when the prisoner spoke and said, “ I am not mad,” to which witness replied, “ but you may get so.” Some one then took hold of the deceased and separated him from the prisoner ; that as they were being separated the prisoner kicked at the deceased. The deceased, *259as soon, as lie got up, went behind a tree, some twenty feet off, and the prisoner, having got np, followed after him with his knife drawn, swearing he would cut him. He saw the prison» er strike with the knife as soon as he came up to the deceased; saw the blood flow from the arm of deceased, who then retreated towards the store-house. He said further that the prisoner followed him a short distance with the knife in his hand, when the sheriff interposed and stopped him. He further stated, that he heard the prisoner say, after the deceased had fallen on the ground, “ if they would let him get to him (deceased) and he was not dead, he would stamp him to death.”

The third witness, one Siolcs, stated that he was present aiding the sheriff to collect taxes, near the table spoken of by McG-ehee; that some hour or two after dinner, deceased came near to whore witness and McGehee were sitting, and soon began to abuse a certain political party, and some man by the name of Hart; that the prisoner was sitting on the ground a little way off, and soon commenced whistling, when the deceased began to dance. After a little, the prisoner ceased whistling and got up, when the deceased handed his whip to some one and bogan himself to pat upon his knees, to which the prisoner danced, and after a while they both danced. While thus dancing, the prisoner took the deceased by the shoulders and butted him severely in the forehead; nothing was said then, but they both continued to dance. After another short interval, the prisoner again caught the deceased in the same way and butted him again; still nothing was said, and after continuing to dance for a short time longer, the prisoner as before, repeated the butting a third time. The deceased then caught the prisoner and bore him backwards until both came to the ground, the deceased being on top. The deceased had his left hand in the hair of the prisoner, and waved his right hand over him saying, “now see what I could do to you.” The deceased did not strike, but as prisoner would endeavor to raise his head from the ground, deceased would press it down. About this time McGehee ordered them to be parted lest they might get mad, to which prisoner re*260plied, “ I am not mad:” Some one immediately took hold of the deceased, but did not remove him at once; in a short time, however, the deceased was taken off without resistance on his part. As he was being- taken off, prisoner kicked him, or kicked at him. The deceased, as soon as he -was up, turned off some twenty feet or more, when the ju'isonc-r getting up, drew his knife and followed on after him, swearing that he would stick it in him ; as soon as he ©ame up, prisoner struck deceased with the knife, and inflicted the blow above spoken of. The deceased then retreated towards a store which was near, and was pursued by the prisoner with his knife in his hand, for a few steps, when he was stopped by the witness, who told him he- arrested him, and to put up his knife, which lie accordingly did. The knife was here produced in Court and identified by the witness; it was some eight or ton inches long, (handle and blade); the blade wide and heavy. "Witness further stated, that while deceased was lying upon the ground, bleeding, prisoner asked to see him, and was allowed to do so, whereupon he remarked, “he was not dead, hut only drunk,” and added “damn him, h© o-ught to he dead.” On several other occasions during th.e evening-, the prisoner- used harsh language towards the deceased. On their way to the jail, the sheriff, who had the prisoner in custody, asked him if he was not sorry for what had occurred, ta which he answered he was not; that he wished the knife had stuck into his heart instead of his arm. The prisoner also said, according to this witness, there was an old grudge between them, out of which all this had arisen ; that some fifteen years since, he had charged the deceased with having stolen a knife, and deceased had raised a bar of iron over him, and would have struck him, hut that he was prevented by others; that he and deceased had once agreed to meet, with their brothers, and fight it out, hut were hindered in some way. This witness also stated, that both jmsoner and deceased were drinking, and after the occurrence the prisoner drank freely, and was very drunk when he started off to, jail, and when speaking of the old grudge. He further stated that when the prisoner *261was searched, tlireé knives were found upon him, and that deceased was unarmed*

"Witness, on his cross examination, did not remember, certainly, wdiether the remark of the prisoner about not being mad was before or after the deceased had taken hold of prisoner’s hair, or whether it was at that very time.

Doctor White, the fourth witness, testified that the death was caused by the wound.

The prisoner introduced no testimony*

The Court, after some remarks upon the law in eases ot homicide, charged the jury that there was no evidence heard by the Court, showing that the parties were angry while engaged on the ground, and requested, if there was any such, that it should be pointed out; that if the jury believed the testimony in the case, it was a case of murder, apart from ths question of express malice; that there was no legal provoca?tion proved, to mitigate the offence to manslaughter; and that oven supposing the deceased had injured the prisoner when the parties were on the ground, the assault by the prisoner with a deadly weapon was out of all proportion to the offence*

The counsel for the prisoner insisted that it was a ease of manslaughter, and asked the Court to charge the jury that it was a case of mutual combat; and that if the parties became heated in the contest on the ground, and thereupon the prisoner, immediately, and in the heat of Mood, used the knife as deposed to, that it was manslaughter* The Court declined so to charge. The prisoner’s counsel -excepted to the charge, and for the refusal to -charge as requested-.

The jury found the defendant guilty of murder* Judgment and appeal.

Attorney General, for the State.

Miller, for defendant.

Pkarson, J.

“ That no freeman shall he convicted of any crime, but by the unanimous verdict of a jury of good and lawful men, in open Court as heretofore used.” That in all *262controversies of law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain “ sacred and inviolable.” Declaration of Rights, Secs. 9. 14. To carry into effect this fundamental principle thus solemnly announced, it is provided by the Act of 1196, Rev. Code, ch. 31. sec. 130: “No Judge, in delivering a charge to the petit jury, shall give an opinion whether a fact is fully or sufficiently proved; such matter being the true office and province of the jury; but he shall state in a full and correct manner, the evidence given in the case, and declare and explain the law arising thereon.”

Thus, besides a direct legislative enactment that a Judge shall not express to the jury his opinion in regard to the sufficiency of the evidence, we have a principle of our organic law, by which it is declared that the-trial by jury is an institution which has been, and must be, cherished by every free people, as the best security for their lives and property, and ought to remain “ sacred and inviolable.” So, this is no ordinary question, involving merely the construction of a statute; but it is a matter, in regard to which the constitution imposes an obligation upon the Courts. It is our duty to see to it, that the trial by jury shall remain “sacred and inviolable;” and if, upon the circuits, there has grown up any practice encroaching upon the trial by jury “ as heretofore used;” although such practice may, to some extent, have been sanctioned by decisions of this Court, it is our duty to pxhf a stop to it; and while we will not allow a jury to encroach upon the province of the Judge, i. e., to declare and explain the law, and undertake, by an abuse of their power, to decide questions of law, (State v. Peace, 1 Jones’ Rep. 257;) on the other hand, wo are equally solicitous to see that the Court shall not commit usurpation upon “ the true office cmcl province of the jw-yP Repetition of error can never j ustify the violation of a positive enactment of a statute; much less the infringement of a fundamental principle upon which our social existence is declared to rest. An error may have crept into our practice by reason of the Judges’ not having attached due importance to *263the distinction between the condition of things in England, whence we are in the habit of taking our notions of law, and the condition of things here, whore the trial by jury is protected both by the constitution and by legislative enactment. A Judge is not at liberty to express an opinion as to the sufficiency of the evidence. When there is a defect, or entire absence of evidence, it is his duty so to instruct the jury; but if there be any competent evidence, relevant and tending to prove the matter in issue, it is the true office and province of the jury” to pass upon it; although the evidence maybe so slight, that any one will exclaim, “ certainly no jury will find the fact upon such insufficient evidence!” still, the Judge has no right to put his opinion in the way of the free action of the jury, even should he deem it necessary to do so, in order to prevent them from being misled by the arguments of counsel, or their own want of apprehension. It is true, juries will sometimes find strange verdicts,, acting under the influence of ignorance or of prejudice ; but in general, juries are honest, and it is considered safer for the lives andi property of the people to submit to the inconvenience of particular cases of this kind, than in anywise to allow the Judge to encroach upon the true office and province of the jury.” This partial evil is in a great mQasure obviated by allowing the Judge to grant a new trial in all cases (except where a party .is acquitted upon a criminal charge) whenever he thinks the jury have found against the weight of the evidence.

There is no difficulty in regard to the rule ; but it must be confessed, there is frequently very great difficulty in making the application; Because the distinction between no evidence” tending to prove a fact, and evidence confessedly slight,” is often a very nice one, and the dividing line can scarcely be traced : so that it is not to be wondered at, that Judges sometimes err, and get on the wrong side of the line. The safest course in such cases is to depend upon the good sense of the jury, and to take it for granted,- subject to the corrective power of the Court above referred to, that a jury will not conjeeüure or guess at a fact when there is no sufficient *264evidence to establish it. The dividing line may be marked thus far: when there is evidence of a fact, which, in connection with other facts, if proven, would form a chain of circumstances sufficient to establish the fact in issue, the fact so calculated to form a link in the chain, although the other links are not supplied, is nevertheless some evidence tending to establish the fact in issue, and its sufficiency must be passed on by the jury; but when the evidence could, under no circumstances, form a link in the chain, and, although competent, yet has no relevancy, or tendency, to prove the fact in issue, the jury should be so instructed. By way -of illustration : it is proven that goods are found in the possession of the prisoner, twelve months after the larceny was committed; every one would say, this is not sufficient evidence to convict; but yet, it is some evidence. On the other hand ; the question being, is the place where a larceny was committed, within a certain county; the proof is, that it was within five miles of the courthouse of that county; this is no evidence of the fact in issue. State v. Revels, Busbee’s Rep. 200. So, the question being, whetherthe purchaserof anogro woman, knew of her unsoundness; the proof is, thathe was the owner of the woman’s husband; this is no evidence of the fact in issue. Such was the first position in Cobb v. Fogalman, 1 Ire. 440. There' may be reason to doubt whether the second position in regard to the scienter of the vendor was not put by the Court upon the wrong side of the line.

In the case now under consideration, the Judge withdrew the facts from the jury, and instructed them, that if the testimony was believed, it was a case of murder, and there was no evidence of a legal provocation. So, the prisoner has a right to insist that the testimony should be taken in the point of view most favorable for him; and that if, in any aspect, the evidence is consistent with his being guilty of manslaughter only, there was error in the manner in which the case was put to the jury. Avera v. Sexton, 13 Ire. 247 ; Hathaway v. Hinton. 1 Jones’ Rep. 243.

Several views were suggested by liis counsel. It will be *265sufficient to notice one. Suppose the testimony of McGehee and Hicks, whose 'evidence tended to explain the scuffle which immediately preceded the fatal blow, is put out of the case, because the jury did not rely upon them, then we have the testimony of Hdbgood ; and considering it apart from the qziestion of express maUoe, which his Honor excludes, we have this evidence : the prisoner and the deceased are seen by this witness, on the ground, the deceased on top ; witness was too far off to see distinctly what occurred, but thought he saw deceased have both hands in the hair of the.prisoner; saw no blows pass, but saiv the prisoner kick at the deceased just as he was taken off; the deceased went around a tree near by, and the prisoner, as soon as he got up from the ground, followed after the deceased, and the next thing he saw of them, the prisoner had overtaken the deceased, had a knife in his hand, and the blood was gushing out of the arm of the deceased, who exclaimed, “ I’m a dead man,” and to the remark of a bystander “ you’ve killed him,” the prisoner replied, “ d—n him, if he ain’t dead, I will kill him.” Upon this view of the evidence, will any one say there was “ no evidence”^ to be passed on by the jury, that the parties had engaged in a mutual contest, or, that the deceased by pulling the hair of the prisoner, as the by-standers were taking him off, or in some other way, had not hm-t him so as to amount to legal provocation and bring on the/Wot brevis which, apart from express malice, mitigates the homicide from murder to manslaughter ? Even in England, where there is no express constitutional provision, making the trial by jury “ sacred and inviolable,” and no direct legislative enactment which forbids a Judge from expressing his opinion in regard to the sufficiency of the evidence, a Judge would have felt himself bound to permit the jury to pass upon this testimony, in the point of view in which it is now presented.

Pish Curiam.

Venire de novo.