#### STATE v. WILLIAM L. BRANDON.

No declarations of a prisoner made after the commission of a homicide, as to the manner of the transaction, that are not part of the res gestee, are -admissible for him.

If a party deliberately kill another to prevent a mere trespass to property, he is guilty of murder.

The law does not recognize my moral power as compelling a man to’do what he knows to be wrong. *

The insanity which takes away the criminal quality of an act, must be such. as amounts to a mental disease, and prevents the accused from knowing the nature and quality of the act he is doing.

Indictment for murder, tried before Bailey, J., at Fall Term, 1861, of Caswell Superior Court.

The defendant was indicted for the murder of one William J. Connelly, his father-in-law. He was living on a place belonging to the deceased, some six miles from the residence of the latter,.under an agreement that he should have all he made over and above what was required to support his children and three daughters of the deceased, who lived in the house with the defendant. The corn had been gathered and was in a pen on .the premises. On the day before the homicide, as was stated *464by one Jaelcson, the defendant was in his granary with his gun and two dogs; on being asked what he was doing there, he said that Connelly had gone to ’Squire Eichmond’s to get a writ, and have him put out, and divide the corn, and if he came there, he intended to kill him ; that Connelly had taken his daughter, Jane, to Eichmond’s, and she had sworn to one lie against him, and he didn’t intend to stand it any longer.

John Moore swore that he lived with the prisoner; that the crop of corn, made in 1860, was gathered and put in a pen near the granary ; that Connelly came there, Friday,--day of November, and put his horse in the stable, and the usual salutations passed between Connelly and the prisoner; that the defendant was sitting in the door of the granary with his gun inside, near him; that Connelly got on the corn in the pen, and threw a few hands full of corn into the wagon, when the prisoner said to him, “ old man get down off of that pen and go out of the lot, or I will hurt you;” that Connelly got down from the pen, saying something that witness did not hear distinctly; that at this-time the prisoner came out of the door of the granary, with his gun in his hands, and they walked a few steps towards each other; the prisoner then raised his gun, took aim at the deceased and shot him; that the deceased was also going in the direction of the stable, where his horse was, and had nothing in his hands when the gun fired; that he was about 63 years of age.

Dr. Broohs, after testifying as to the extent of the wound, stated that the father of the prisoner was deranged, at one time, for about two,months ; that the prisoner had a sister, an uncle, and an aunt, who had been deranged. He alse testified to the singular conduct of the prisoner when drunk, but did not consider him deranged at that time.

Mr. Wa/rf stated, that he saw the prisoner in the granary with his gun, and Connelly on the pen; that prisoner ordered him down; that Connelly threw several hands full of corn into the wagon, and told John Moore to get the measuring tub ; John said it was locked up and prisoner had the key; *465he told Moore to burst the door open and bring it to him; that every thing there belonged to him ; Prisoner then said, “ old man, get down from there and go out of the lot, or I will hurt you ; you are meddling with that that does not concern you or yours.” Connelly replied, “ I will show you, you villain, to whom it belongs;” Connelly got off the pen quickly, and the boys got down at the same time; that the witness then turned towards the gate, and presently heard the report' of the gun; that he then returned, and found Connelly lying with his head within three feet of the post of the granary, and a stick lying near the body of the deceased, and blood upon the hand of the prisoner; that shortly afterwards he examined the hand of the prisoner, and the skin was off for about the size of a ten cent piece. This witness, and several others, testified as to the conduct of the prisoner, prior to the commission of the act, tending to show that he was deranged, and that his ancestors were deranged.

The prisoner then offered to give in evidence what he said to Dr. Brooks shortly after the homicide was committed, to wit, that the wound, on his hand, was caused by a blow given by deceased with a stick, which caused the blood on his hand. This evidence was rejected by the Court, and defendant’s counsel excepted.

The prisoner’s counsel insisted, 1st, that although the prisoner knew it was wrong to kill the deceased, yet, if he was impelled to the act by a moral power, which he could not resist, he was excusable.

2. That if thé deceased committed a trespass in attempting to take away the corn, and the prisoner, in order to protect his property, shot and killed the trespasser, it would be manslaughter and not murder. The Court charged the jury, that if the prisoner was insane at the time of e&mmitting the homicide, they should acquit him; that every one was presumed to be sane until the contrary was shown ; that the prisoner must satisfy them of that fact. Defendant’s' counsel excepted to the charge.

*466Verdict — guilty of murder. The Court pronounced judgment of death, and the defendant appealed.

Attorney General, and Wvnston, Sr., for the State.

No counsel appeared for the defendant in this Court.

Manly, J.

The first question, which the record presents, is, whether the declarations of defendant were competent, in his behalf, to show how he received a certain wound.

It is stated that the declarations were made shortly after the homicide. There is no principle, upon which these can be held admissible, except as a part of the “ res gestee,” and the statement of the case excludes the idea that they were of this nature. The declarations were after the act was past and done. This question has been brought under review in this Court on several former occasions, which will be seen by a reference to the cases of State v. Scott, 1 Hawks, 24; State v. Huntley, 3 Ire. 418 ; State v. Tilly, do. 424. The professional idea seems to have been that a narrative given by a person, who has committed a homicide, as to how it happened, immediately after the act, and when the first proper opportunity offered, should be admitted. Rut this evidence, though dictated by what, in divers supposable cases, might be deemed a necessity, is so clearly against principle, and entitled, in the greatest number of instances, to so little credit, and is so well calculated to obscure rather than elucidate a transaction, that the Court have uniformly adhered to their original judgment, by which it was excluded. 'It has been no where, that we are aware of, interpolated as a rule of evidence, upon the common law, by legislation or otherwise. In the case before us, the circumstances under which the declarations, in question, were made, are so vaguely stated, as not to bring them within any proposed or reasonable rule; But we make no question about this. Take the statement of the case in any sense, and the declarations are plainly excluded by the “well-settled law of evidence in North Carolina. They must *467be a part of the res gestas, and come in as explanation of an act being done when they were made, or not at all.

The second question arises upon a position taken by the prisoner’s counsel, that if the killing was to protect prisoner’s property from the trespass of the deceased, it would be an extenuated case of homicide. In this position, it seems, the Court did not concur. The matter involved in this point, has been before this Court heretofore, on more occasions than one. It seems to have been first carefully considered in the case of the State v. Morgan, 3 Ire. 186, and, again, in the State v. McDonald, 4 Jones, 19. In these two cases, it is fully settled, if a party deliberately kill to prevent a mere trespass to property, he is guilty of murder.

The third and last question, made upon the record, arises out of proofs, in respect to the mental condition of the prisoner. The record states the prisoner’s counsel insisted that, although the prisoner knew it was wrong to kill the deceased, yet, if he was impelled to the act by a moral power, which he cordd not resist, he was excusable. The words, “ moral power,” may mean threats, duress of imprisonment, or an assault imperilling life, which is the usual sense of the phrase, or it may mean, some supernatural agency. The former construction would make the position of the counsel entirely inapplicable to the case ; we, therefore, adopt the latter. The position, thus interpreted, does not fall within any approved definition of a “ non compos mentis.”

It assumes that the accused knew the nature of his act and .that it was wrong. The law does not recognize any moral power compelling one to do what he knows is wrong. “To know the right and still the wrong pursue,” proceeds from a perverse will brought about by the seductions of the evil one, but which nevertheless, with the aids that lie within our reach, as we are taught to believe, may be resisted and overcome, otherwise it would not seem to be consistent with the principles of justice to punish any malefactor. There are many appetites and passions which by long indulgence acquire a mastery over men more or less strong. Some persons indeed deem *468themselves incapable of exerting strength of will sufficient to arrest their rule,- — -speak of them as irresistible, and impotently continue under their dominion; but the law is far from excusing criminal acts committed under the impulse of such passions. To excuse one from criminal responsibility the mind must, in the language of the Judge below, be insane. The accused should be in such a state from mental disease as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong, and this should be clearly established. This test, a knowledge of right and wrong, has long been resorted to as a general criterion for deciding upon legal accountability, and with a restricted application to the act then about to be committed, is approved by the highest authorities. But we do not undertake to lay down any rule of universal application. It seems to be chimerical to attempt to do so from the very nature of things, for insanity is a disease and, as is the case with all other diseases, the fact of its existence is not established by a single symptom, but by a body of symptoms, no particular one of which is present in every case. Imperfect as the rule may be, it covers a great variety of cases and may aid the tribunals of the country in judging of this most difficult subject. The case put of a criminal act committed under the belief that it was commanded by God, would fall under the rule. The perpetrator in such would not know he was doing what was wrong, but on the contrary, believe he was doing what was right in obeying a power who had a right to command him. This condition of mind would constitute insane delusion in respect to the particular act committed, and if clearly established by proof of pre-existent facts, would excuse from responsibility.

It will thus be seen that instructions, in conformity with the argument of prisoner’s counsel, ought not to have been given. If the prisoner knew that what he did was wrong, the law presumes that he had the power to resist it, against all supernatural agencies, and holds him amenable to punishment. There is no error in the instructions actually given *469upon this subject, and in the absence of any prayer for other specific instructions, there is no omission, of which the prisoner has a legal right to complain.

' There being no error found upon the record, this must be certified to the Superior Court of law for Caswell, that the said Court may proceed again to pronounce the judgment of the law.

Per Curiam,

Judgment affirmed.