State v. Ingold.

caught the prisoner by the collar, and they began to push each other until the deceased pushed the prisoner into the jam of the fence and against it. The prisoner was with his back to the fence and bent over on the side, as if one foot had slipped. The deceased then struck the prisoner two blows in the face, and then caught him with his hand about the mouth. The prisoner seemed quiet, and immediately the deceased cried out, "that he was cut." Witness went to him and found him standing with a cut on the left side of the belly, and holding his bowels in his hands. The prisoner was standing there attempting to fix the blade of his knife in the handle, one of the jaws having broken. Witness told him to give up the knife, he refused, and witness knocked it out of his hand and took it. The deceased was taken into witness' house, and died next morning about nine o'clock. Both prisoner and deceased were quite drunk.

This witness further said, upon cross-examination, that he saw the prisoner have the knife some time before the fight began, but he did not see it again, until after Steel was cut. He thought he did not have it in his hand when he left the house and crossed the fence. He heard Lankford tell the prisoner he should not fight. The fence-corner was eight or ten feet from where Steel was standing when the prisoner approached him. Witness thought that the prisoner could not have got out of the fence-corner handy after Steel had pushed him there. When the prisoner approached, deceased did not give back at all, but witness could not say whether he advanced or not. During the morning, prisoner proposed several times to go his work, but it being a rainy day, he was dissuaded from doing so by Lankford and the deceased. This witness also stated, that the deceased was a powerful man, of violent temper, and what is called a fighting man.

The Court charged the jury (amongst other matters not excepted to) as follows: If the prisoner willingly entered into the fight with the deceased, and during the progress of the fight, however sorely he might be pressed, stabbed the deceased as described by the witnesses, his offense, at least,

State v. Ingold.

would be manslaughter, (and emphasised at least). But that he might be guilty of murder, and would be, if the jury believed that, before entering into the fight he had formed a deliberate purpose to bring about a fight and use his knife; and in execution of that purpose, he did bring about the fight, and stab the deceased and killed him. To this part of the charge defendant's counsel excepted.

The jury remained out till 11 o'clock next day, and then returned into the Court for further instructions, when the above were reiterated in substance.

The jury again retired, and after a short time, returned a verdict, finding the defendant "guilty of murder."

Kittrell,* for the State.

Bailey, Fowle and Hill, for the defendant.

PEARSON, J. There is manifest error in the first proposition of law laid down by his Honor. "If the prisoner willingly entered into the fight, and during its progress, however sorely he might be pressed, stabbed the deceased as described by the witnesses, his offense, at least, would be manslaughter."

By sorely pressed, we understand being put to the wall, or placed in a situation where he must be killed or suffer great bodily harm, or take the life of his adversary. Supposing there was evidence to raise this point, the offense, according to all the authorities, was excusable homicide, which Foster calls self-defense culpable, but through the benignity of the law, excusable; Foster's C. L. 273-4; 1 East's Cr. L. 279; 4 Blk. Com. 184; 1 Hale 482. Indeed, as the deceased made the first assault with a deadly weapon, i. e., "a stone about the size of a goose egg"-threw with violence at a short distance, and followed it up by pushing the prisoner against the jam of the fence, gave him two blows, and then caught him with *Mr. Bailey, the Attorney General, having been of counsel below for the defendant, Mr. Kittrell was appointed by the Court to prosecute this case.

State v. Ingold.

his hand about the mouth, having him against the fence, bent over on the side, before the prisoner struck him at all, if the necessity for killing existed, which his Honor assumed, it would seem to have been rather a case of justifiable homicide.

There is a further error in this proposition: his Honor charged that the offense was, at least, manslaughter, emphasising the words at least. This left the jury uninstructed as to whether, in the opinion of his Honor, it was manslaughter or murder, and they had reason to infer that he inclined to the opinion that it was murder, taking the case in its most favorable aspect. It was error to leave the jury in this state of uncertainty. At all events, it prepared the minds of the jury to lean against the prisoner in the next aspect in which the case was presented.

It was said in the argument for the State, that as the jury found the defendant guilty of murder, which it was assumed they did upon the second aspect in which the case was presented, this error was harmless; and it was likened to a finding in a civil action, where the "general issue" and "justification" are pleaded, and the jury find for the defendant, upon the "general issue," which makes an error in the charge upon the plea of justification immaterial, so that it is not a sufficient ground for granting a venire de novo. The cases are not precisely analogous. In the latter, there are two independent pleas, and the matters are distinct and can easily be kept separate. Here, there is but one plea, and it was difficult to keep the matters separate. In fact, there is no telling to what extent the jury, in considering the case in the second aspect in which it was presented, were influenced by the error in regard to the first. If the offense was in no aspect excusable homicide, and in the most favorable aspect, at least, manslaughter, who can say that the jury did not find the prisoner guilty of murder upon the first aspect? His Honor left the way open, and it may be that the consideration of the case in the second aspect, without satisfying them that it was the true view, had the effect of bringing their minds to the conclusion, that the prisoner was guilty of murder upon the first aspect;

State v. Ingold.

or, at any rate, of getting the matter so mixed up, that they had no distinct idea, or agreement among themselves, whether they found him guilty of murder, because, having entered into the fight willingly, he inflicted so horrible a stab with the knife, or because they were satisfied, from the evidence, that "before entering into the fight he had formed a deliberate purpose to bring about a fight and use his knife."

That this is the most reasonable way of accounting for the verdict which was given after much hesitation, is confirmed by the fact, although we are not at liberty to say there was no evidence, yet, the evidence was certainly very slight that the prisoner had formed a deliberate purpose to bring about a fight and use his knife. It is true, while they were holding him in the piazza, he flourished his knife, and swore "one of us has to die before sun-set;" but every one who has witnessed scenes of this kind, knows that such "rearing and charging and popping of fists," are far from evincing a deliberate purpose, particularly when the opponent is a much stouter and more able-bodied man. The barking of a dog shows that he thinks it safer to bark than to bite.

As to bringing about the fight, the deceased bantered him, and said if he would come out he would whip him; the prisoner said he would go, although there was a whole parcel of them, (from this it would seem he had but little stomach for the fight,) to which the deceased replied very insultingly, and made the onset with the stone. It should be borne in mind, that the prisoner and the deceased were before that day friendly; commenced drinking as friends. The prisoner wished to go to his work, but was persuaded by the deceased to continue in the carouse, and it was not until after they talked about hitting each other in the face, that the prisoner used such furious language. Whether they had hit each other in the face, does not appear; but something occurred which made the prisoner very angry. If he was hit in the face, then the oath that "one must die before sun-set," amounts to nothing, because it was the effect of passion. If he had struck a mortal blow, the killing would have been

Garner v. Qualls.

manslaughter, and surely, words spoken in a passion, induced by legal provocation, ought not to have more effect than a mortal blow. We think the prisoner is entitled to have his case submitted to another jury. Venire de novo.

PER CURIAM.

Judgment reversed.

ROBERT GARNER vs. ELIZABETH QUALLS et al.

Where the obligee represented to the obligor in a bond, that a relation of the latter had committed an indictable offence, and procured the bond in question to be executed, by agreeing not to prosecute for such offence, it is void-whether any such offence had been committed or not.

ACTION OF DEBT, tried before BAILEY, J., at a Special Term (November, 1856,) of Granville Superior Court.

The action was brought upon a bond to which, among other pleas, was pleaded, "that the bond was given upon an illegal consideration, to prevent a prosecution for forgery."

It was proved that the plaintiff represented to Mrs. Qualls, the principal in the bond, that her son-in-law, one Fowler, had committed three several forgeries, and told her he would prosecute him for these offences unless she gave him her bond for the amount Fowler owed him, and that if she would give him her bond he would not prosecute. She thereupon procured the other defendants to join in the obligation, and delivered it to the plaintiff. There was no other evidence that Fowler had committed the offences imputed to him than the above declaration of the plaintiff.

His Honor instructed the jury, that if, from the evidence submitted to them, they were of opinion that Mrs. Qualls believed that her son-in-law, Fowler, had committed forgery, as represented by the plaintiff, and gave the bond declared on to prevent a prosecution for the same, the bond was null and void, and the plaintiff could not recover, although they might