#### STATE v. JAMES N. FLOYD.

If two engage in a fight mutually and suddenly, and one kills with a deadly weapon, it is but man-slaughter, and ordinarily, it is not material which makes the first assault.

It is error in a Judge, in a trial for murder, to make a hypothesis omitting-the leading fact which goes to the exculpation of the accused.

It seems, that when it is necessary for the accused to account for the fact that he began a sudden mutual affray with the use of a deadly weapon, in order to repel the inference of malice arising from that fact, he may show that his adversary was a powerful, violent and dangerous man. (State -v. Ilogue, C Jones’ Rep. 381, commented on.)

Indictment for muedeR, tried before Bailey, J., at the last Spring Term of Mecklenburg Superior Court.

The defendant was indicted for the murder of one Richard Martin in Gaston county, and the cáse was removed to Meck-lenburg.

One Dmid McOuTlough, for the State, testified that he came to the blacksmith shop of the deceased about dusk, on the evening of the 17th of December, 1858 ; that a few minutes afterwards, the prisoner came to the shop, and remained talking with the witness and the deceased, apparently friendly ; that the prisoner said to the deceased lie wanted something to eat, upon which the latter pointed to a piece of meat hanging up in the shop, and told the prisoner to cut some of the meat, at the same time handing him a knife with which he did cut off a piece of the meat, and broiled upon the coals of the hearth of the shop; that the deceased then went to a box and took out of it two biscuits, one of which he gave to the witness, and the other to the prisoner; that about half an hour *393afterwards, ihe deceased asked the prisoner for his knife, to which he said he did not have it, and the deceased replied that he had given it to him' to cut the meat, and he had not returned it; that the prisoner denied again that he had it, and an angry quarrel ensued, which continued for about half an hour, when the deceased said to the prisoner, “Eloyd you must he a damned rascal, for you have got my knife and wont give it to me”; that but little more was said for about five minutes, when the deceased remarked, “ d-n the knife, I don’t care any thing for it, no how;” that nothing was said for about five minutes more, when the witness and the prisoner started to go home, the witness getting into his buggy, and the prisoner'on his horse ; that when the witness had got about fifty yards from the shop, and the prisoner about seventy or seventy-five, the deceased, came out of the shop and approaching the witness, said, “ I’ll give McCullough a dram, but I wont give Eloyd any;” that this was said in a mild, friendly tone, and the witness reigned up his horse and stopped ; that the prisoner turned his horse across the road ; that the deceased handed him a small glass bottle, from which he took a drink and handed it back to him; that the deceased then went up to the prisoner, with the bottle in his right hand, and extended it towards the prisoner as he had done to him ; that the prisoner immediately got off of his horse, and a fight ensued between him and the prisoner; that before the witness could reach the parties, and while as yet about ten steps from them, he saw the deceased fall on his back, and in a few moments died ; that the prisoner then went to a fence, on the side of the road, where ho remained with his hands on it for about a minute, then mounted his horse and rode off; that this took place about 10 o’clock at night; that he heard nothing said from the time the deceased gave him the dram till the prisoner went off after the deceased fell; that it was"a bright moon-light night; that the witness, deceased and the prisoner, had each taken a dram in the shop, just before the two latter ate the meat and biscuits.

The body of the deceased was found about one hour áfter-*394wards in the position described by the witness, McCullough, upon which there were six wounds, three on the top of the right shoulder, from which blood was running next morning-another on the right side extending into the stomach, a fifth one on the outside of the thigh which was deep; and a sixth a little to the right of the centre of the body, ranging from Ihe right to the left, passing through the lungs and quite through the body; a large bowie knife, belonging to the prisoner, was found near the body of the deceased covered with blood, nearly up to the hilt.

One Cosüier stated that, about two hours by the sun, he saw the prisoner at the store of one Neagle, about half a mile from the blacksmith shop ; that as witness was about starting home the prisoner told him not to leave, that he, prisoner, might need friends that evening; that shortly afterwards, he repeated tlie same expression, at the same time he pulled a bowie knife from his bosom, which was proved t9 be the same found at the scene of the homicide; that the witness asked him if he would sell the knife, to which he said no, that he expected to have a use for it that evening. On cross examination, this witness said that he expected to have a difficulty there with a relation of his own by the name of Floyd, and that it was in reference to him that the prisoner spoke of needing friends, and having a use for the knife.

One Meagle swore that the prisoner showed him the bowie knife at tlie store, about sun-set, and said he had bought it in Yorkville, and had given ten dollars for it

The defendant introduced a witness, a nephew of his, who lived with him in York district, S. 0., who swore that on the morning after the homicide, he saw a wound on the prisoner’s forehead, about tlie eye-brow, which appeared to be about an inch and a half long, and that lie had two or three wounds on the top of his head, and that his right thumb was either broken or disjointed ; it was proved by other testimony that there was much blood at tlie place where the homicide occurred, and a stone was found about five feet from the body of the deceased weighing two pounds and three quarters, upon which there *395was blood and hair, and something like skin; also, that the bowie knife, when found, had two gaps in it, which were not in it on the evening before, when seen by Costner and Neagle.

The deceased was a free negro.

The defendant’s counsel offered testimony to prove the temper and disposition of the deceased for violence, which was ruled out by the Court, and they excepted. It was proved by the sheriff of Gaston, that he asked the prisoner while in jail how he got the wound over his eye; to which he replied, “I reckon I did it with my own knife; or I did it with my own knife; they say I had a fight with Dick Martin and killed him, but I know nothing about that.”

The prisoner was taken at his residence in York district, South Carolina.

The Court explained to the jury the difference between murder, manslaughter, and excusable homicide, and charged, that if the deceased made an assault on the prisoner, either by using a stone, bottle, or in any other way, or attempted to pull him from his horse, and they immediately got into a mutual combat, and during the fight the deceased was slain by the prisoner, although with a deadly weapon, his offence would not be murder, but manslaughter only.

That if the prisoner was assaulted by the ‘ deceased, and they engaged in a sudden affray, and the prisoner was so sorely pressed or placed in such a situation that his life was in danger, or he was about to receive a great bodily harm, and under these circumstances he killed, the law would excuse, bnt'that the law would excuse no one for killing another, unless there was an absolute necessity-for so doing to save his own life from destruction, or to prevent great bodily harm.

That if they should be satisfied that the deceased approached the prisoner in the manner stated by the witness, and that he made no assault whatever upon the prisoner, and the prisoner dismounted and slew him with the bowie knife, giving the several wounds as described by the witnesses, then the of-fence would be murder, although the deceased had used offensive language in the shop, and uttered the words as he ap*396proached McCullougla with the bottle. Defendant’s counsel excepted.

. The j my found the defendant guilty of murder. Judgment was rendered and defendant appealed.

Attorney General, for the State,

'Thompson and Osborne, for the defendant.

Peaesoit, C. J.

The prisoner is entitled to a venire de novo, for the reason that, neither of the three positions, given in charge to the jury, hits the case.made by the evidence.

If two engage in a fight upon a sudden quarrel, and one kills with a deadly weapon, it is hut manslaughter, State v. Curry, 1 Jones’ Rep. 280. In this case, there is no suggestion of preconceived malice. The fact, that the prisoner had about his person a deadly weapon, is accounted for by the proof that he had armed himself for a different purpose. The quarrel with the deceased was sudden, and the prisoner had got on his horse, and was going off until stopped by the deceased.— They then engaged in a fight; how, or on what cause, is not proven, but they engage in a fight, and the prisoner kills with a deadly weapon. So, upon the principle above stated, it is but manslaughter.

His Honor put the case to the jury in three aspects:

1. “If the deceased made the assault upon the prisoner with a stone or the bottle, or in any 'other way, or attempted to pull him from his horse, and they got into a fight, &c., it was manslaughter. This does not hit the case, for the evidence does not show who made the first assault, and upon the principle above stated, that was not material, provided it was a sudden quarrel, and the parties engaged in a fight, and the prisoner, under the excitement of the fight, resorted to the use of his knife. So, the the effect of this position is destroyed by the condition precedent, i. e. that the deceased .made the assault.

2. “If the prisoner was assaulted by the deceased, and they «engaged in a sudden fight, and the„prisoner being sorely *397pressed, &c., it was killing in self defence. This does not hit; for there was no evidence that the prisoner was “ sorely pressed.”

■ 3. If the deceased approached the prisoner in the manner stated by the witness, and 'made no assault, and the prisoner dismounted and slew him with the bowie-hnife, it was murder. This does not hit the case made by’ the evidence, for it omits the all important fact, that after the prisoner got off of his horse, they engaged in a fight. This is acting the play of Hamlet with the character of Hamlet omitted. The gist and very essence of the matter, was that the parties had engaged in a fight, and this fact was distinctly proven. So, of course, it was error to put any hypothesis to the jury omitting the fact.

Erom the statement of the case, sent to ns, it cannot he a case of murder. How it happened that the parties got into the fight, is unaccountable, and neither the Court nor the jury, are allowed to make conjectures. But perhaps, upon a second trial, the facts may be more fully disclosed; and it may be that the deceased pushed the bottle into the face of the prisoner, and thus caused the fight; or, it may be that the prisoner, without any such grievous provocation, got off of his horse, and commenced the fight with his bowie Tenife, so as to bring the case under that of Maugridge, KJel. 128; Foster’s Crown Law 295; and in that event, it may be, that the prisoner should be allowed to prove that the deceased was a very powerful man, greatly an over match for him in an ordinary fight, and one, whose genercd character, was that of a violent and dangerous man, who was in the habit of using deadly weapons, for the purpose of accounting for the fact of commencing with a bowie knife, and thereby repelling the inference of malice, which the law would otherwise make. In that aspect of the case, provided the deceased urged the prisoner into the fight it may be, such evidence would be admissible, as an exception to the general rule laid down in State v. Hogue, at this term, (ante 381,) for it would seem, the known character of the deceased, as a violent and dangerous man, would then *398be material, and be involved in the issue. One cannot be expected to encounter a lion as he would a lamb.

As the case is presented to us, the evidence in respect to the violence of the deceased, was properly rejected; for it was immaterial whether he was violent or quiet in his temper as the parties engaged in a fight, and it did not appear that the prisoner made the onset with his bowie knife. There must be a venire de novo..

Pee Cueiam. . Judgment reversed.