Defendant concedes that the above italicized portions of the court's charge represent a correct statement of the common law, accepted and recognized as the law of this State from the first reported cases. See, e.g., State v. Tackett, 8 N.C. 210, 219 (1820); State v. Merrill, 13 N.C. 269 (1829); State v. Hill, 20 N.C. 629, 635 (1839); State v. Jarrott, 23 N.C. 76, 82 (1840); State v. Barfield, 30 N.C. 344, 349 (1848); State v. Howell, 31 N.C. 485 (1849). See also 7 Encyclopedic Digest of N.C. Reports, Homicide 39 (1918).
True it may be a disturbing of one's peace, but is not an assault with intent to kill. Under the law this gun was in the same condition as though it were unloaded, as the testimony on part of the State shows that it could not be discharged. A deadly weapon is one likely to produce death or great bodily injury. State v. Jarrott, 23 N.C. 76, 87; 2 Words Phrases, 1853-1854; State v. Bowles, 146 Mo. 6; Price v. U.S., 156 F. 850; People v. Montgomery, 15 Cal.App. 314; State v. Yturaspe, 22 Idaho, 360; Terr v. Gomey, 14 Ariz. 139; State v. Sears, 86 Mo. 169; 5 C.J. sec. 188, p. 725; Hall v. State, 105 S.W. 816. (6) As a general rule, intoxication cannot be proven to reduce the grade of the crime, or to show that the act was not a crime, or to prove no crime was committed; but in some cases it is admissible to show that no crime has been committed, or to show the degree of the crime. Thus, in his prosecution for maliciously shooting, evidence that defendant was so intoxicated that he could not form an intent to wound, is admissible.
The manner of the killing by Foster, his acts and conduct attending its commission, and his declarations immediately connected therewith, were evidence of express malice. 21 Cyc., 889, 897, 924, 925; S. v. Jarratt, 23 N.C. 76. "The fierceness and atrocity of the attack, the circumstances under which it was made, the nature and extent of the injury inflicted, the condition of the body and wearing apparel, the deadly nature of the weapon used and the manner of using it, and all other facts constituting the res gestae, are proper subjects of inquiry on the question of malice and intent. Subsequent statements of the accused showing that his hatred of the deceased was so intense that it pursued him beyond the grave, are admissible on the issue of express malice.
In cases of the latter kind the character of the weapon must be left to the determination of the jury, under appropriate instructions. See upon this subject, 1 Bish. Cr. Law, § 335; The State v. Jarrott, 1 Ired. 87; The State v. Collins, 8 Ired. 407; Rex v. Grice, 7 Car. & P. 803; State v. Dineen , 10 Minn. 407; State v. West, 6 Jones, 505. Judgment and order reversed and cause remanded for a new trial.
PEARSON, C. J. In S. v. Jarrott, 23 N.C. 76, this Court, (492) taking the law to be that insolence on the part of a slave to a white man would justify a battery, but not an excessive one, awarded a venire de novo on the ground that the instruction to the jury must be understood as having reference to the testimony, and was in that sense erroneous; and used these words: "The language of his Honor, indeed, is that `if the prisoner used the provoking language testified by the witnesses, deceased had a right to whip him.' But by the word `whip' he must necessarily be understood as meaning to `whip in the manner testified by the witnesses,' that is, with a knife and a fence rail." In this case we think the prisoner has a right to complain of the third instruction, i. e., "If the prisoner believed, and had reason to believe, that a mere trespass only was intended, and killed to prevent such trespass, it would be murder"; for taking the law to be that a mere trespass to personal property does not mitigate where the killing is with
Verdict of not guilty. NOTE — See S. v. River, post 79; S. v. Tackett, 8 N.C. 217; S. v. Hale, 9 N.C. 582; S. v. Jarrott, 23 N.C. 76.