#### STATE vs. GEORGE INGOLD.

Though a person may enter into a fight willingly, yet, if in its progress, he be sorely pressed, that is, put to the wall, so that he must be killed or suffer *217great bodily harm, unless he kill his adversary, and under such circumstances he does kill, it is but excusable homicide.

Where a Judge, in charging the jury in a case of homicide, presents two views of the evidence, in one of whieh his' instruction is erroneous, though the other was right, if it be left uncertain whether or not the verdict of the jury was predicated on the erroneous instruction, the defendant is entitled to a venire de novo.

Tins was an INdiotmeNT for muedeb, tried before PeesoN, Judge, at tbe Eall Term, 1856, of Alamance Superior Court.

The defendant was indicted for feloniously killing one Stanford Steel, and the material testimony was as follows :

William Ooble, a witness for the State, testified, that on the 1st day of September, he was passing the house of George Ximbro, in Alamance county, and hearing some loud talking in the house, which was some ten or twelve feet from the gate, he stopped in the road, and heard the deceased say, “ ITncle George, I want no fuss.” The prisoner came to the door cursing and swearing, and seemed very angry, and came into the piazza, when one Lankford, who was present, handed him a knife. "Witness heard a kind of dluok in the house and the prisoner went in. "Witness walked down the lane to a locust tree, about fifty steps from the gate, and hearing the prisoner making a fuss, he looked and saw Lankford holding him while the deceased was coming out of the house into the lane. After getting out, he said "to the prisoner, “If you will come out here, I can whip you,” or “ I will whip you.” The deceased then called to the witness to stop, saying he wished to talk with him, and walked down to where witness was at the locust tree. Here, he took a seat on the roots of the tree, and entered into conversation with the witness. The prisoner continued to make a noise, and said, “ he would go down there, although there were a whole parcel of them.” (Besides witness and deceased, there was a negro boy, present at the tree.) To this, the deceased replied very insultingly. The prisoner then came out of the house with a drawn knife in his hand. lie first walked across the lane, and then turning towards the place where he and the deceased were, advanced to within forty yards of the deceased, when he (de*218ceased) bounced up as if he was going to meet him. The witness then walked off beyond the end of the lane, to where he could not see the parties, but after a little, stepped back and saw them. The deceased, at this moment, had his right hand on the prisoner’s left shoulder. Both were standing. Soon deceased took his hand off of the prisoner, and it dropped by his side, and he saw his head bent down on his breast, which is the last he saw. They were then about, twenty-five feet above the locust tree, on the opposite side of the lane. The knife-blade was five or six inches long. The deceased was a large and powerful man, weighing about one hundred and eighty ; violent in temper, and generally considered a bully. The prisoner was a smaller and less powerful man.

George Kinibro testified, that the deceased came to his house on Saturday, and staid until Monday, the first of September. On that day, about ten o’clock in the morning, the prisoner and Lankford came there. The deceased and prisoner met friendly and drank together .freely. About three o’clock, he heard the deceased and prisoner talking about hitting each other in the face. They became angry, and witness said, “ Boys, I won’t have a fuss here.” The deceased said, “ I won’t say another word; I’ll go to the barn,” and he then left. The prisoner then went into the piazza, and in a little while he said, “ I’ll be cursed,” or “ I’ll be damned, if one of us has’nt got to die before sun-set this evening.” Lank-ford, at that time, was holding the prisoner. He got loose, and witness saw him popping his fists together as he started. He put both hands on the fence and got over into the lane. Witness called to him to come back, telling hint he would make himself liable, but he paid no attention to what he was saying, and went towards the deceased, who was standing in the middle of the lane, near the. locust tree. The prisoner stopped when he got within a few feet of the deceased, and they had some words, which the witness could not hear. The deceased then stooped down and picked up a stone about the size of a goose-egg, and threw it at the prisoner’s'head with violence, but missed him. Deceased then *219caught the prisoner by the collar, and. they began to push each other until the deceased pushed the prisoner into the jam of the fence and against it. The prisoner was with his bach to the fence and bent over on the side, as if one foot had slipped. The deceased then struck the prisoner two blows in the face, and then caught him with his hand about the mouth. The prisoner seemed quiet, and, immediately the deceased cried out, “ that he was cut.” "Witness went to him and found him standing with a cut on the left side of the belly, and holding his bowels in his hands. The prisoner was standing there-attempting to fix the blade of his knife in the handle, one of the jaws having broken. "Witness told him to give up the knife, he refused, and witness, knocked it out of his hand and took it. The deceased was taken into witness’ house, and died next morning about nine o’clock. Both prisoner and deceased were quite drunk.

This witness further said, upon cross-examination, that he saw the prisoner have the knife some time before the fight began, but he did not see it again, until after Steel was cut. Tie thought he did not have it in his hand when he left the house and crossed the fence. Tie heard Lankford tell the prisoner he should not fight. The fence-corner was eight or ten feet from where Steel was standing when the prisoner approached him. "Witness thought that the prisoner could not have got out of the fence-corner handy after Steel had pushed him there. When the prisoner approached, deceased did not give back at all, but witness could not say whether he" advanced or not. During the morning, prisoner proposed several times to go his work, blit it being a rainy day, he was dissuaded from doing so by Lankford and the deceased. This-witness also stated, that the deceased was a powerful man, of violent temper, and what is called & fighting man.

The Court charged the jury (amongst other matter's not excepted to) as follows: If the prisoner willingly entered into' the fight with the deceased, and ^during the progress of the fight, however sorely- ’he might be pressed, stabbed the deceased as described by the witnesses, his offense, at least, *220would be manslaughter, (and emphasised at least). But that he might be guilty of murder, and would be, if the jury believed that, before entering into the fight he had formed a deliberate purpose to bring about a fight and use his knife ; and in execution of,that purpose, he did bring about the fight, and stab the deceased and killed him. To this part of the charge defendant’s counsel excepted.

The jury remained out till 11 o’clock next day, and then returned into the Court for further instructions, when the above were reiterated in substance.

The jury again retired, and after a short time, returned a verdict, finding the defendant “ guilty of murder.”

Kitbrell,* for the State.

Bailey, Fowls and Bill, for the defendant.

*

Mr. Bailey, the Attorney General, having been of counsel below for the defendant, Mr. Kittrell was appointed by the Court to prosecute this case.

Pearson, J.

There is manifest error in the first proposition of law laid down by his Honor. “ If the prisoner willingly entered into the fight, and during its progress, however sorely he might depressed, stabbed the deceased as described by the witnesses, his offense, at least, would be manslaughter.”

By sorely pressed, we understand "being put to the wall, or placed in a situation where he must be killed or suffer great bodily harm, or take the life of his adversary. Supposing there was evidence to raise this point, the offense, according to all the authorities, was excusable homicide, which Foster calls self-defense eulpdble, but through the benignity of the law, excusable; Foster’s C. L. 273-4; 1 East’s Cr. L. 279 ; 4 Blk. Com. 184; 1 Hale 482. Indeed, as the deceased made the first assault with a deadly weapon, i. e., “ a stone about the size of a goose egg” — threw with violence at a short distance, and followed it up by pushing the prisoner against the jam of the fence, gave him two blows, and then caught him with *221bis- band about the month, having him against the fence, bent over on the side, before the prisoner struck him at all, if the necessity for killing existed, which his Honor assumed, it would seem to have been rather a case oí. justifiable homicide.

There is a further error in this proposition : his Honor charged that the offense was, 'at least, manslaughter, empha-sising the words at least. This left the jury uninstructed as to whether, in the opinion of his Honor, it was manslaughter or murder, and they had reason to infer that he inclined to the opinion that it was murder, taking the case in its most favorable aspect. It was'error to leave the jury in this state of uncertainty. At all events, it prepared the minds of the jury to lean against the prisoner in the next aspect in which the case was presented.

It was said in the argument for the State, that as the jury found the defendant guilty of murder, which it was assumed they did upon the second aspect in which the case was presented, this error was harmless; and-it was likened to a finding in'a civil action, where the “general issue” and “justification” are pleaded, and the jury find for the defendant, upon the “ general issue,” which makes an error in the charge upon the plea of justification immaterial, so that it is not a sufficient ground for granting a verii/re de novo. The cases are not precisely analogous. In the latter, there are two independent pleas, and the matters are distinct and can easily be kept separate. Here, there is but-one' plea, and it was difficult to keep the matters separate. In fact, there is no telling to what extent the jury, in considering the case in the second aspect in which it was presented, were influenced by the error in regard to the first. If the offense was in no aspect excusable homicide, and in the most favorable aspect, at least, manslaughter, who can say that the jury did not find the prisoner guilty of murder upon the first aspect ? His Honor left the way open, and it may be that the consideration of the case in the second aspect, without satisfying them that it was the true view, had the effect of bringing-their minds to the conclusion, that the prisoner was guilty of murder upon the first aspect; *222or, at any rate, of getting tbe matter so mixed up, that they had no distinct idea, or agreement among themselves, whether they found him guilty of murder, because, having entered into the fight willingly, he inflicted so horrible a stab with the knife, or because they were satisfied, from the evidence, that “ before entering into the fight he had formed a deliberate purpose to bring about a fight a/nd use his l&nifeP

That this is the most reasonable way of accounting for the verdict which was given after much hesitation, is confirmed by the fact, although we are not at liberty to say there was no evidence, yet, the evidence was certainly very slight that the prisoner had formed a deliberate purpose to bring about a fight and use his knife. It is true, while they were holding him in the piazza, he flourished his knife, and swore “ one of us has to die before sun-set;” but every one who has witnessed scenes of this kind, knows that such “ rearing and charging and popping of fists,” are far from evincing a deliberate purpose, particularly when the opponent is a much stouter and more able-bodied man. The barking of a dog shows that he thinks it safer to barlt than to bite.

As to bringing about the fight, the deceased bantered him, and said if he .would come out he would whip him; the prisoner said he would go, although there was a whole parcel of them, (from this it would seem he had but little stomach for the fight,) to which the deceased replied very insultingly, and made the onset with the stone. It should be borne in mind, that the prisoner and the deceased were before that day friendly; commenced • drinking as friends. The prisoner wished to go to his work, but was persuaded by the deceased to continue in the carouse, and it was not until after they talked about hitting each other in the face, that the prisoner used such furious language. 'Whether they had hit each other in the face, does not appear; but something occurred which made the prisoner very angry. If he was hit in the face, then the oath that “ one must die before sun-set,” amounts to nothing, because it was the effect of passion. If he had struck a mortal blow, the killing would have been *223manslaughter, and surely, words spoken in a passion, induced by legal provocation, ought not to have more effect than a mortal blow. "We think the prisoner is entitled to have his case submitted to another jury. Venwe de novo.

Pee Cttetaw. * Judgment reversed.