Opinion
(October Term, 1796.)
A motion to postpone a trial for murder on account of the great public excitement against the prisoner, was refused. WILLIAMS and HAYWOOD, JJ., differed as to the questions whether a juror could be asked on oath whether he had expressed an opinion unfavorably to the prisoner. The State may discredit its own witness by proving that the witness, on former occasions, had given a different account of the transaction from that which he relates in court. A person who was violently abused and beaten, made his escape, ran to his own house, 80 yards off, got a knife, ran back, and upon meeting, with the deceased, stabbed him. It seems that he is only guilty of manslaughter. If, upon the second meeting, the prisoner had disguised the fact of having a weapon, for the purpose of inducing the deceased to come within his reach, the killing would have been murder.
INDICTMENT for the murder of Nathaniel Daves, and not guilty pleaded.
Mr. Hay: In order to get over the embarrassment this motion is likely to produce, and the warmth it has given occasion to, I propose that where a juror is challenged propter affectum, or for having expressed his opinion, his name shall be set down and noted as one challenged for cause, and that the clerk then proceed with the panel; and if the panel shall be gone through and the jury not completed, that then we consider of the jurors whose names are noted, and how the exception shall be tried. Perhaps we may get a jury before the panel is gone through, and then it will not be necessary to consider further of the exceptions.
Jones, Solicitor-General.
Mr. Hay, and then Mr. Taylor, answered the Solicitor.
The prisoner was brought to the bar to take his trial. Mr. Hay read a paragraph from a paper printed in this place, and circulated on Monday last, stating the homicide committed by the prisoner in terms of aggravation, and moved on that account for a postponement of his trial, apprehending that the public mind was too much irritated at present for the prisoner to have a fair trial.
The people in this country do not take for truth everything that is published in a newspaper. The jury well know they are to be governed only by the evidence and the law. I trust no one will be so much prejudiced against the prisoner as to be led to an unjust condemnation. It will be the duty and the business of the Court to see that he had every advantage the law allows him. It is not to be apprehended that a jury of this country will do him wrong; their humanity is proverbial.
I disapprove highly of the publication. The cause, however, is in course of trial, and must come on.
The clerk began to call over the jurors, after informing the prisoner these were the men who were to pass upon his trial, and that he must challenge them if he thought proper, as they came to the book to be sworn.
Mr. Hay said the killing of Daves by the prisoner had been a subject of very general conversation; that the fact had been related in a newspaper under aggravating circumstances, and though that publication might not have been made with a view of preoccupying the mind of any one who was to take a part in the trial, yet in reality it may have had the effect of prejudicing the public mind in general against the prisoner; that he had but too much reason to apprehend it had produced such effects. He therefore moved when the prisoner objected to a juror propter effectum, or for favor, as it is called, that the juror might be examined upon oath whether he had expressed an opinion unfavorable to the prisoner, as otherwise it would be difficult for him to produce any satisfactory proof of the fact, having been confined and visited only by one friend, and not knowing until the moment the juror is offered whether or not that person would be upon the panel. Great part of the jurors being talesmen, summoned this morning since the sitting of the court, had he ever heard of any man having expressed an unfavorable opinion, not knowing he would be summoned as a talesman, it is not to be expected the prisoner could be prepared to prove his exception, however true it might be, unless it could be supposed he had prepared himself to support his exception against every man who had given such opinion, and that would be unreasonable.
Mr. Jones opposed the motion, saying there was no precedent for such a procedure, and he hoped the Court would not now make one for the first time in favor of this prisoner, who should be tried as all other prisoners have been.
I do not at present recollect ever to have seen such a practice, and I am induced to think there is no precedent of this kind.
There is none.
Mr. Taylor then cited 3 Bl. Com., 363. A person about to be sworn as a juror may be challenged for any of the causes there stated; or even where the challenger hath no principal cause of challenge, but only some cause of suspicion, the validity of which must be left to triers. He also cited 3 Bl. Com., 364, where it is laid down from Co. Litt., 158 b, that a juror may himself be examined on oath of voire dire with regard to such causes of challenge as are not to his dishonor or discredit. He also cited 4 Bl. Com., 352, where it is said the (431) prisoner may have the same challenges for cause in a criminal as the plaintiff or defendant may in a civil case, and where a challenge propter effectum is mentioned as one of them. He argued that the expressing an opinion by the person offered as a juror, if not a principal cause of challenge, as he thought it was, at least is such a cause as might reasonably induce a suspicion of his not being indifferent and impartial towards the prisoner; and if a prisoner in a criminal case had a right to except to a juror, suspecting him to be unfavorable, there must be some mode of trying and discovering the truth of the exception, and there was no reason in a criminal case for resorting to a different mode of trial from that used in a civil one; and if on a civil case, for the purpose of reaching the disposition of the juror towards the party, the law would suffer a juror to be interrogated on his oath with respect to the truth of the cause alleged, to show him not impartial, it is equally necessary that a prisoner, where life is in danger, and for whom the law professes so much tenderness, should be also entitled to have his exception tried in the same way, and to the same means of investigating it.
Upon reflection, I am of opinion the motion is (432) proper and the person offered may legally be interrogated on oath, as to any unfavorable opinion he has expressed against the prisoner. I can see no reason why the exception is not allowable as well in a criminal as in a civil case, nor why the juror should be sworn in a civil case and not in a criminal one. It is rather more necessary in the latter, as it is of more importance to the prisoner concerned to have a good opinion of his jury. If a prisoner is at all entitled to the privilege contended for, it is as necessary to allow it in the case before us as in any other. There is reason to suspect that the publication just spoken of may have had some influence upon the public mind, unfavorable to the prisoner. The homicide with which he is charged has taken place in this town but a few days past. It is to be feared some ferments are caused by it, rendering it proper for the Court to be circumspect and careful that the prisoner be not prejudiced by the violence of the current opinion. We should act as counsel for the prisoner so far as to see that he has a fair trial, and that he is not denied the benefits the law has provided for his defense against injustice.
I cannot think the prisoner is entitled to interrogate a juror on oath as asked for. This man should be tried as all others have been. Why should we extend privileges to him that were not granted to the man tried yesterday for murder? That man's life was as dear to the public yesterday as this man's is today, and we allowed no such privilege to him. I have never known such a thing even asked for before in any criminal case. The office of a judge is indeed a very arduous one; I feel sensibly how disagreeable it is to sit upon a trial when the life of a fellow-citizen is in jeopardy; but when we once undertake it, we should discharge it faithfully, regardless of those sympathizing feelings for the prisoner which are so apt to be experienced on such occasions. We are not to be influenced in any respect by them. It is not a true position that we are to be the friends of the prisoner. We are to see that he has a fair trial, and this is all that is required of us.
I am intrusted in some measure by my country with this man's life. He may be a bad man and deserve death; but I will not prejudice him, neither will I for any earthly cause be prevailed upon to deny him any privilege he is entitled to. I think upon consideration he is entitled to that which his counsel ask for him; and were the whole world here present to demand his execution, I would not refuse him an advantage that should be conceded to him. Whilst I sit here, the public cry shall never seduce or impel me into the (433) adoption of a measure my judgment disapproves.
That proposal is a proper one. I think it should be adopted.
The rule is so in civil cases. Let authorities be produced to show how it is in criminal ones.
The gentlemen on both sides searched for authorities, but could find none.
I think the Solicitor should be allowed to discredit the witness, if she has varied from the relation she now gives. Were he not allowed to do this, a prisoner and his friend might tamper with worthless persons to swear for the prisoner, and secure them from any impeachment of their credibility by procuring them to relate in public a story tending to establish the guilt of the prisoner, and by that means cause them to be summoned by the public officer and introduced for the State, and, when sworn, to depose directly against what they had publicly related. Were not the Solicitor allowed to impeach such evidence, a wide door would be opened for the acquittal of the prisoner by false testimony. The prisoner would have nothing more to do than cause his witnesses to be introduced on the part of the State. They might therefore pass for truth any falsities they might think proper to utter. It is a very easy matter to procure them to be introduced for the State, as the Solicitor-General, not being acquainted with the witnesses, would think it is his duty to summon and introduce all such persons as he was informed could swear anything against the prisoner.
No light that can be thrown on this subject should be excluded, nor any means left untried to place the fact in its true point of view. The witness has sworn to some circumstances which are very material in the present case; and if untrue, they should be rectified. If she has related the fact differently to other persons, it is a good reason for giving the less credit to her relation now.
The witnesses to discredit her testimony were called. One of them related the story she told a few days ago, in which several circumstances now mentioned by her were omitted. Two witnesses were called to support her credit. They said she had told the story in their presence at different times exactly as she now told it in court.
This closed the evidence on both sides, a summary of which stands thus: On Saturday night, Norris and Young returning from the races, Norris went in at Mrs. Ramsay's, whilst Young waited for him (439) in the piazza. In the house, Norris talked with Ramsay, sitting on the bed, and supper coming on, he retired and went up the street, Young going down. Dudley and Daves understanding from Campbell they had come there to quarrel, stripped, went out calling for them and saying they were cowards. Norris at this, going down the street, passed near Mrs. Ramsay's, not far from which they were. Daves accused him of coming there to breed a riot; Norris denied it. Daves insisted upon it, and proceeded to abusive language, which Norris retorted and Daves repeated, tripping up his heels and kicking at him whilst on the ground. Norris rising, Daves struck him, and Norris called to Campbell to take notice. Dudley then advised Daves to take satisfaction, and Daves struck Norris three or four blows. Norris ran off towards his own house, distant from Thompson's, which was 20 yards below Ramsay's, 50, 80, or 100 yards. Daves and Dudley went down the street towards Thompson's, where they found Young stripped. Dudley stood in the street, opposite Thompson's, conversing with Young. Daves also stood in the street, near Thompson's, conversing with Mrs. Thompson. Norris, after an absence of three or four minutes, returned running, and, as Mrs. Thompson says, stopped in the street opposite to them; as the other witness says, he ran up to Daves without stopping. Daves discovered him, and went towards him. Mrs. Thompson and Dudley say Daves inquired whether he had a weapon, club or stick, which Norris denied, and they met. Campbell says Norris cried out, "Come on; I am ready for you." Mrs. Thompson says blows passed upon their meeting, which she believes were given by Daves. Dudley says he did not see Daves strike before the stab; the other witnesses say nothing of blows at this time. Immediately upon the last meeting, the deceased received the mortal wound of which he died.
The case before us is of awful importance; every circumstance in it is worthy of attention and consideration. I am pleased at the solemn silence which hath prevailed during the progress of this trial. The offense of which the prisoner is indicated is that of the murder of Nathaniel Daves. If he is guilty upon the evidence, weighed by the law of the country, public justice requires he should not be screened by any misplaced compassion; and if upon the evidence he is not guilty of the crime imputed to him, no influence whatsoever should prevail to hinder his acquittal. Whether he be guilty or not depends upon the law and the fact.
Before we proceed to examine the fact, we should clearly comprehend what is meant by the term murder. To fix the attention only to such circumstances as are material to be considered now, it will be sufficient to say it is a killing with malice prepense. The other parts of the definition have been fully given by the Solicitor-General. Malice prepense is a legal term that needs explanation. It does not signify ill-will or malevolence against an individual; it means, as some authors express it, a disposition to do evil; as others, the symptom of a wicked, depraved, and corrupted heart; as others, the sign of a heart regardless of social duty, and fatally bent upon mischief; by others, it is termed a circumstance attending the fact that cuts off the slayer from all manner of excuse. All of them being only different modes of representing the same idea. By this latter explanation is meant that when the killing is without any justifying, excusing, or alleviating circumstance, it is then murder. There are a great variety of such circumstances; for instance, where the killing is committed by an officer in executing the sentence of a proper tribunal, the killing by such authority and for such a reason is a circumstance that justifies the party. So, also, if a man kill another who is attempting to kill or rob him, or the like; here the killing, being with a design to prevent the perpetration of as great an evil attempted to be brought upon an innocent person, is a circumstance that justifies the deed. If the man doing a lawful act in a proper manner undesignedly kills another: here the killing, being done without any design to kill, and without any negligence in the party killing, is a circumstance which excuses him. So if the party slaying hath been fighting with another, and declines the combat, and the other press him so hard that he is obliged to kill him to prevent his own destruction or great bodily harm: this circumstance of killing to avoid his own destruction, though originally culpable in fighting with the deceased (446) at all, will excuse him from the guilt of felony. And in all other cases where the circumstances attending the fact are such as will justify or excuse the party, he is not guilty of murder, because the circumstances are not such as leave him without excuse. Also, although the killing may not be attended with circumstances of justification or excuse, yet it may be attended with such circumstances as will mitigate his offense, and afford him something to say by way of excusing or exempting himself from the guilt of murder: as where some great and violent provocation hath been given to him by the person killed, and he in the transport and fury of his passion killeth the other, the law in such case attributes the killing to the frailty of human nature, operated upon by excessive anger, excited by the unworthy treatment of the deceased; and both law and reason says that a killing under such circumstances should not be punished with the same severity as a killing without provocation, or without a very great one, and when the mind is cool and reflecting.
The great distinction between murder and manslaughter is this: manslaughter is committed under the operation of furious anger that suspends for a time the proper exercise of reason and reflection, and which hath been stirred up by some great provocation; for there are some provocations that are not indulged with an allowance of exciting the passions to such excess, and thus a distinction is formed between the different degrees of provocation. If it be by words or gestures only, it will not be sufficient to mitigate homicide into manslaughter; but if it be a provocation by some great indignity offered to the party killing, as by spitting in his face or the like, or by falling out and fighting, so that in either case it may reasonably be presumed the blood is heated, and the passions raised to such a degree as to suspend the proper operation of the reasoning powers, the exercise of judgment and reflection, such provocation will be a sufficient one to extenuate the offense into manslaughter. But although a sufficient provocation be given, and the passions greatly excited, yet if a sufficient time intervenes for the passions to subside and cool, and after that the party provoked killeth the other, the law will deem it murder, as having not been an effect of ungovernable passion and from the frailty of human nature, but upon a principle of revenge after reason had assumed its proper station. What is a sufficient time for this purpose hath never as I know of been precisely ascertained. It hath been adjudged that an hour is more than (447) sufficient time. It seems to depend greatly upon the nature of the provocation, and must be left to the jury to decide. If in the case before them they think sufficient time did intervene, they should find the prisoner guilty, though he had been greatly provoked before; if otherwise, they should find him not guilty of murder, but of manslaughter only. Also, although the slayer hath been greatly provoked, and was agitated by resentment and anger in the highest degree, and hath not had a sufficient time for cooling before the fatal stroke given, yet if in fact he appears to be possessed of deliberation and reflection, when or just before the time he gives the mortal blow, it will be murder: as where two men quarrel, and agree to fight, and the one observes to the other, he must first change his shoes, as they would render him less expert with the sword, and they afterwards go out and fight, and he kills the other, it is murder, because the remark he made shows deliberation and reflection; for always it is to be observed, that the law allows the offense to be extenuated only upon the ground that the slayer has not the free and proper exercise of his rational faculties, owing to the fury of resentment not unreasonably conceived.
There are other distinctions between murder and manslaughter not necessary to be now taken notice of, as they have no relation to any such case as is framed by the evidence now before the Court.
It is most proper to state only such parts of the law concerning homicide as, being compressed into a succinct compass, may serve to exhibit a clear view of the distinction between murder and manslaughter as far as regards this case. The next thing to be done is to apply such parts of the evidence as are material to the rules just laid down.
The first thing that presents itself is, Norris' going in Ramsay's house. He does not appear to have behaved illy there; from the whole of the evidence it does not appear he went there with a design to quarrel; he had retired before Daves and Dudley stripped and went out. They hallooed for him and Young in the street, calling them cowards. Daves charged Norris, when met, with a design to raise a riot; he denied it again and again, till called a damned liar, when he retorted the lie conditionally; Daves tripped up his heels, kicked at him on the ground, struck him after he had risen; and upon Norris' intimating an intention to resort to the law for redress, repeated his blows three or four times, when Norris ran off. Now the question arises, Was this a great provocation? Would such treatment excite the passions of man in general to a degree of excess? I think it would. If Norris had killed Daves on the spot, I think it would have been but manslaughter. Norris (448) returned in three or four minutes, and gave the fatal stab. If he came up and nothing more passed before the stab, as the witnesses Campbell and Dudley say they did not, then it is for the jury to consider whether the three or four minutes intervening between the blows near Mrs. Ramsay's and the stab opposite Thompson's was sufficient time for the passions to cool. If it was, the killing was murder. If it was not, the case falls under the same consideration as if the fatal stroke had been given when Daves first struck him. If the jury believe what was sworn by Mrs. Thompson, and which the other witnesses do not mention, that Daves when he advanced towards Norris after his return struck him two or three blows before the stab, they have a right to consider whether that was not a fresh provocation sufficient to extenuate the homicide into manslaughter. If, however, the jury believe there was not a sufficient time for the passions to subside, and that the blows mentioned by Mrs. Thompson did not pass, yet the circumstances related by two witnesses of Norris' having twice denied his having a weapon or club, as it tends to evince deliberation and reflection, must be taken into their consideration; and if they believe from this circumstance that he at that time had a reflecting capacity, and meant to conceal the weapon from Daves in order to draw him on, that he might kill him, then he is guilty of murder. It is proper, however, to observe that such a conclusion is in some sort negatived by Mrs. Thompson, who declares Norris told him to stand off, or the worst would be his. The jury will now take the law, the facts, and the circumstances of this case, and by a careful comparison of the one with the other, they will draw a conclusion and say whether the prisoner is guilty of murder or manslaughter. I trust I have stated the law correctly.
I agree with Judge HAYWOOD except in a few particulars: He says malice is understood of a killing under such circumstances as cuts the party off from all manner of excuse. I do not think this a true position. He may have some kind of excuse, as a slight provocation or the like, or a provocation not sufficiently violent; he may, in short, have some sort of excuse, and yet be guilty of murder. I cannot think it an excuse to reduce the offense to manslaughter where two persons (449) quarrel and fight, and one goes some distance, gets a knife, returns and kills the other with it. Such disputes happen every day. If we say it is not murder to kill shortly after, under such circumstances as this man was killed, much blood will be spilt in a very short time. It will be establishing a dreadful precedent. Norris ran off from the first combat and went home; he got into his house, his castle of refuge and defense, where no one would have offered to molest him. Why did he not remain there? Why take his knife and return back 80 or 100 yards to an enraged man? Did not this show a murderous intent, and that his heart was bent upon cruelty? I think it is no matter what provocation the slayer may have received from the other, if notwithstanding that he appears to have possessed the faculty of reflecting. It is a temporary frenzy occasioned by passion, and depriving the man for the time of his reason, that the law considers and goes upon in estimating and reducing the homicide to manslaughter; but there is not any evidence in this case of a deprivation of reason, but evidence of the contrary. He denied having any weapon, when expressly asked whether he had or not. The jury will consider why and for what purpose he made such an answer. If he had any certain end in view, it is an evidence that his reason and judgment were not overturned. On occasions like the present we are not to give up ourselves to the guidance of commiseration. We ought inflexibly to do justice without regard to consequences. I am sure I have as much feeling and compassion for my fellow-creatures in distress as any man; but it is great cruelty to the public in a judge or juror to acquit a murderer from motives of compassion. It encourages such offenses; besides, how is the prisoner dearer to us than the person slain, who may have left a wife and helpless orphans to deplore his loss, deprived of their only friend, and now exposed comfortless to the world? I do not know what was the situation of the deceased, but this may be the case with persons who fall by murderous hands, and their dependents. I meant not to prejudice the case of the prisoner, but only to express my idea of the impropriety there is in showing favor. If the prisoner by his conduct has subjected himself to the punishment of the laws of his country, we were not the cause of his transgression. If any mishap befall him, it is his own fault, not ours. We should never attempt to trample upon the rules of law from motives of mercy or compassion.
The jury retired, and after some time returned, and found the (450) prisoner not guilty of murder, but guilty of manslaughter; and he was burnt in the hand and discharged.
NOTE BY REPORTER. — The cause of reporting this case with so much minuteness is that the public opinion ran very high against the prisoner, before and after his trial, and he was pronounced guilty of murder by many who were present at his trial. The jury who acquitted him were highly censured. Perhaps the learned may be of opinion, when they meet with this case, that the jury gave a proper verdict. It is possible that may become the general opinion. If so, probably some of those who are to be hereafter concerned in trials of this sort may be led to reflect on the rapidity with which a wrong opinion sometimes spreads its influence over the public mind, and to be cautioned, that a popular sentiment, however honest and well meaning it may be, may sometimes become current for want of sufficient consideration or information, and as frequently so respecting matters of judicial deliberation as any others.
Cited: S. v. Benton, 19 N.C. 208; Hill v. Cox, 34 N.C. 322.
Overruled: S. v. Taylor, 88 N.C. 697.