#### STATE v. ERASTUS HOGUE.

The character of the deceased, as a general rule, is not involved in the issue of murder, and is, therefore, inadmissible.

Where it appeared that the prisoner had prepared a deadly weapon, with an intention to use it, in case he got into a fight with the deceased, and went to a particular place for the purpose of meeting with the deceased, and of having a conflict with him, it was Held to be murder, and not man-slaughter.

INdictmeNt for MUEDEE, tried before DicK, J., at the last Spring Term of "Wake Superior Court.

The defendant was indicted for the murder of one Sherwood II. Parrish.

The latter was employed at Winton’s Hotel, in the city of Ealeigh, and the prisoner had been a boarder there. On the evening of the day in question, the deceased was in the room where the supper table was set, and after the usual signal the door was opened, and the boarders commenced entering; the deceased stood beside the door, in the inside, with a stick under his arm, and a pistol in his right band, and as Hogue was about to enter, Parrish presented himself in his way and immediately popped the cap before him; -whether the pistol *382was in the direction of his person or not, was left doubtful by the testimony. The prisoner seized the pistol, wrenched it from the hand of the deceased, and immediately commenced stabbing him. He gave him several stabs, and then pushed him upon a side table and gave him several more while in that position, of which he immediately fell dead. There was evidence of a previous quarrel about dinner time, and subsequently, various threats from the prisoner, to the effect, that he would enter the supper room and eat his supper there, and if Parrish opposed him, he would slay him. There was evidence, that he procured the knife with which the homicide was done, for the express purpose of using it in that way; that Parrish had that day demanded of Hogue his bill, and told him he could board no longer there ; that he asked Win-ton, the tavern keeper to let him go in to supper, which he declined. Hogue begged him to let him go in, and offered him a large price if he would do so, but on the landlord’s still persisting in the refusal, he declared vehemently that he would go in at all hazzards, or, any how. Some of the witnesses swore that Winton did not refuse him expressly, but as he turned off, said in reply to the prisoner’s declaration, that he would go in to supper, “ well.” There was evidence tending to show, that the defendant bought the knife in question, for the express purpose of using it in a fight with Parrish, and that he, in various instances, declared that, if Parrish attempted to prevent his entering the supper room, he would kill him. One witness said he saw the prisoner, about a half minute before the bell rang for supper, open his knife, and put it, open, up his coat sleeve. One other said, that immediately after the transaction the prisoner came into Cook’s shop, where he was, and said “ he had killed the damned rascalthat Cook asked him what he had in his hand, the prisoner showed him a knife and said, he “ went to old Ivarrer’s and bought it for ' him,” and said, “ don’t you see the blood on it.” There was much other testimony not material to be stated. All the testimony was submitted to the jury, with instructions, not ex-

■ *383cepted to by the prisoner’s counsel, and a verdict of guilty of mv/rder, was thereupon found.

The only part of the charge of the Judge below, requiring a particular notice, is the following : “ That if they found, from the evidence, that the prisoner had prepared a deadly weapon, with intention to use it, in case he got into a fight with the deceased, and went into the dining room for the purpose of meeting with the deceased, and with the expectation of having a conflict with him, it would be a case of manslaughter.”

In the course of the trial, the defendant’s counsel asked a witness, what was the general character of the deceased, which on objection, was pronounced inadmissible, whereupon the defendant’s counsel excepted ; and that is the material part of the case in this Court. The defendant appealed.

Attorney General, for the State.

Miller, Moore and R. G. Lewis, for the defendant.

PbaRsow, C. J.

It is a general rule, that on a trial for homicide, evidence of the character and habits of the party killed, as to temper and violence, is not admissible. The State is not allowed to prove that he was a quiet, orderly citizen, nor is the prisoner allowed to prove that he was a violent and out-breaking man. The rule is based upon the ground that character is not involved in the issue, and consequently, evidence in regard to it, is immaterial. And there is this further consideration : such evidence is not only immaterial and irrelevant, as having no legitimate bearing upon the matter under investigation, but is calculated to mislead, by exciting the prejudices of the jury. For instance, if one kills, either on express malice, or malice implied, there being no justification, excuse or mitigation, the fact, that the party killed was a good or bad man, is immaterial. It is murder to kill on malice, no matter what sort of a man he is, and yet a jury would be more inclined to convict, if he was a good man, tiran if he was a bad one; and there is no telling the extent to which the prejudices of a jury may be excited, and how far they could be *384misled by evidence of this kind. It is therefore important to the due administration of the criminal law, that this well settled rule of evidence should not be relaxed.

There may be exceptions to the rule. State v. Tackett, 1 Hawks 211, is admitted to be one; but we are not at liberty to enter into an investigation for the purpose of defining the principle on which exceptions may be allowed, or of fixing the limits; for the case now before us certainly comes within the operation of the general rule, arid it is sufficient to refer to Bottoms v. Kent, 3 Jones Rep. 154; State v. Barfield, 8 Ired. Rep. 344, to show that the general rule is settled, both in civil and criminal proceedings.

The deceased committed a violent assault upon the prisoner as he entered the room. This was legal provocation, and if the c,ase stopped there, the killing would be manslaughter, and the character of the deceased as a quiet, or violent man would be immaterial; but the case did not stop there, for the jury, under instructions of which the prisoner has no right to complain, find that he killed “of his malice aforethought,”— that he had formed the deadly purpose — prepared the weapon, and sought that particular time and place to do the deed. So the character of the deceased was immaterial. It is surely murder to kill with malice, express or aforethought, no matter how violent or wicked the deceased may be.

His Honor laid down one proposition which we think too favorable to the prisoner, and it is referred to, lest it may mislead. It assumes that the prisoner “had prepared a deadly weapon with an intention to use it m case he got into a fight with the deceased, and went into the dining room for the purpose of meeting with the deceased, and with an expectation of having a conflict with him,” and the killing is held to be manslaughter. Rilling under these circumstances, would be murder, because of the preconceived malice, although the deceased made the first assault. State v. Martin, 2 Ire. Rep. 101.

This opinion will be certified that further proceedings may be had according to law.

EeR CuRIAm, Judgment affirmed.