Opinion
June Term, 1820.
1. To an indictment for an assault in the Superior Court the defendant pleaded in abatement that a prior indictment was still pending against him in the county court for the same cause. Held, that the plea is good, for the courts have concurrent jurisdiction, and to avoid the mischief of having two indictments carried on for the same cause against the same person the jurisdiction shall attach in the county court by the prior finding of the bill, and shall exclude that of the Superior Court, except in its appellate capacity, unless it be shown that the first is carried on by fraud and covin, which may be replied by the State to such a plea.
2. There is no method by which an indictment can be removed from the county court to the Superior Court for trial but by appeal after a final decision.
3. Where, upon words of reproach on both sides between Y. and B. the latter approached the former and struck him a violent blow with his fist, which staggered him, and the company separated them and were taking B. away when Y., within one minute, advanced upon B., who extended his arm to take hold of him, and Y. immediately stabbed him with a knife, which he had not shown before. Held, that if death had ensued, it would not be murder, but manslaughter, notwithstanding the separation for a minute, and the weapon, for the wrath of the accused, kindled in the highest degree by the blow, would not reasonably subside within that period, and in such case the instrument makes no difference.
4. Necessity distinguishes between manslaughter and excusable homicide and not between the former and murder; its absence is common to both murder and manslaughter.
THIS was an indictment, from FRANKLIN, containing two counts: the first for an assault on one Benton with intent to kill and murder, and the second for an assault only. The defendant appearing, pleaded in abatement that before the filing and finding of this indictment he was indicted in the Court of Pleas and Quarter Sessions for Franklin County for the same cause and acts upon which this indictment is founded, and that said indictment is still pending, and that the county court hath jurisdiction of the case.
To this plea the Attorney-General entered a general (79) demurrer in which the defendant joined, and upon argument the court sustained the demurrer. The defendant, being allowed to plead over, pleaded "not guilty," and on issue joined the case came on for trial at October Term, 1819.
The prosecutor and several witnesses stated that the defendant came up in front of the prosecutor in a menacing manner, but with his hands in his breeches pockets, when the prosecutor raised his hand to push him back, and the defendant immediately stabbed him with a knife in a vital part of the body, and that the wound was likely to produce death.
One W. Taylor, at whose house the affair happened, proved on behalf of the defendant that Benton and a brother of Yarbrough were in conversation relative to some part of the defendant's conduct, who was then absent, but came up soon afterwards, and the brother then said to the prosecutor, "Now tell him to his face what you have to say of him." Yarbrough seated himself in a chair in the porch where the company were, and remarked to Benton that there was no occasion for casting flouts on him, and that he wished for peace. They continued to talk, until words of reproach were used on both sides, when Yarbrough rose and stood up, and Benton came to him and struck him a violent blow with his fist, which staggered him, though it did not knock him down. The company immediately interfered, separated them, and were attempting to carry Benton into an adjoining room, when Yarbrough advanced up and the prosecutor extended his arm to take hold of him, and immediately the traverser stabbed him. The witness further said that he did not see nor hear anything of a knife until the stab was given, and that it was about one minute after the blow had been given by Benton.
The counsel for Yarbrough moved the court to instruct the jury that, according to the evidence of Taylor, if believed, if death had ensued, it would have been manslaughter (80) only; but the court refused to give such instruction and charged the jury that it would have been murder, inasmuch as the parties were then separated, and there was then no necessity on the part of Yarbrough to stab the prosecutor. Under this instruction, the jury found the defendant guilty. He moved for a new trial, upon the score of misdirection, which was refused, and he appealed to this Court.
Seawell and Gaston for the appellant.
Attorney-General and Williams for the State. (82)
delivered the opinion of the Court, which was composed of himself, Hall and Murphey.
The first question relates to the validity of the plea, which is demurred to. It must be assumed, upon the pleading, that the first indictment was prosecuted in good faith (83) and with the view of bringing the defendant to trial. There is truth in the remark made by the counsel for the State that public justice may be sometimes evaded by an offender procuring a friend to indict him in the county court, where a trivial punishment would secure him from another prosecution in the Superior Court. While the first indictment is pending, and before judgment, the evil arising from a fraudulent prosecution may, in general, be obviated by replying that the indictment was prosecuted by fraud and covin between the prosecutor and the defendant, and the verification of this fact before the jury would destroy the validity of the plea.
It is a familiar rule of law that a man cannot bring a second action for the same cause, for which he has a prior action depending. This extends to qui tam actions, where the plaintiffs are different, if the cause of the actions is the same; to informations qui tam, and to indictments to recover forfeitures on penal statutes; but informations and indictments for crimes are excepted from it. That the rule should not extend to those modes of prosecution, the consequences of which are most grievous to the accused, seems at first view to be unjust and in conflict with the maxim, Nemo bis debet vexari, si constet curiae quod sit pro una et eadem causa. This anomaly in the English law is only to be accounted for by the extensive criminal jurisdiction of the King's Bench; for it was formerly thought that no acquittal in any other court could be effectually pleaded in bar to a prosecution in the King's Bench. Into that court indictments may be removed from all inferior courts by writ of certiorari, and are thus under its control for all the purposes of justice.
If there be any criminal courts of local and independent jurisdiction, from which an indictment could not be removed into the King's Bench, that court would, I apprehend, be compelled by the reason and the rule to sustain such a plea as the one now relied on. This may be inferred from a passage in (84) Hawkins: "If an appeal be commenced before Justices in Eyre, and afterwards another appeal be brought in King's Bench, it will be a good plea that another appeal is depending, which shows that the King's Bench ought not, without a certiorari, to intermeddle in an appeal whereof another court is legally possessed before; and the reason seems to be the same as to indictments."
The County and Superior Courts of this State have concurrent jurisdiction of the offense charged in this indictment; and where the jurisdiction of the former attaches, it must be exercised throughout before the Superior Court can take cognizance of the case, and then it can act only in its appellate capacity. There is no method by which an indictment can be removed from the County to the Superior Court before trial; so that, if a party were precluded from pleading the pendency of another indictment, he might be not only bis vexatus, but bis punitus, pro una et eadem causa. This reason is sufficient to show that the plea ought to be sustained.
With respect to the exception taken to the charge of the judge in relation to Taylor's testimony, it seems to me to be incontrovertible that if death had ensued, it would have been a plain case of manslaughter. The defendant received from the prosecutor a blow so violent as to stagger him, and in a minute afterwards gave the wound. We deem such a provocation a legal one, and the law presumes that it may kindle wrath in the highest degree, so that a person is rather to be considered as acting under the suspension of reason than from the impulse of malice. The homicide would have been not the less extenuated, because he used a deadly weapon, since the passion, excited by an attack on his person, was continued to the moment of the act.
The jury were incorrectly instructed when they were told that it would have been murder, because there was no necessity on the part of the defendant to do what he did. The task was to distinguish between murder and manslaughter; but the (85) absence of necessity is common to both of them. Had such necessity existed, it would not have amounted even to manslaughter. In considering whether a homicide amounts to manslaughter or is excusable, the inquiry as to the necessity of it would have been all-important; and had the judge been called on to instruct the jury that it would have been no more than excusable homicide, he might properly have refused to give such instruction, and for the very same reason that is given for calling it murder.
I am consequently of opinion that, upon both grounds, the judgment must be reversed, and the demurrer to the plea in abatement overruled and the plea sustained.
So the plea was sustained.
Cited: S. v. Tisdale, 19 N.C. 161; S. v. Willeford, 91 N.C. 530; S. v. Moore, 136 N.C. 584.