The- defendant was convicted of murder in the first degree at the August Term, 1899, of Johntson Superior Court, and upon sentence being pronounced, he appealed.
A recital of the substance of a considerable part of the evidence is necessary to an intelligible discussion of that part of the charge of the Court upon which, mainly, we have determined to grant- to the prisoner a new trial.
At the time of the homicide, the prisoner lived near Selma, on a piece of land lying immediately on the public road. His house was a small framed one, fifteen or twenty yards from the road. He, with his wife, went into Selma about three o’clock, on the afternoon of the 26th of December, 1898, to arrange a Christmas tree. Between- ten and eleven o’clock at night, he and his wife, both walking, left the town for their home; while the father and mother of the prisoner, riding in an ox cart, were just behind, returning toi their home, also. A short distance out of the'town the prisoner and his wife passed three persons who wore masks which concealed their features. They each had a woman’s skirt, and one of them *617was wearing bis. The three masked persons were Charles Lewis Cawthorn, Graham Garner and Thomas Winfrey. They had all been drinking and had a pint of liquor along with them. During the day they had been shooting off fireworks in Selma, and upon being prohibited by the town authorities from further indulging in the sport, they determined to go out in the country that they might do- so'. One of them, Winfrey, had in his pockets two loaded pistols — a Bull Dog, of 32 calibre, and a Harrington & Richards, of like bore.
In a short time after the prisoner and his wife had passed the three masked persons, the latter started on the road in the same direction in which the prisoner was going. The masked persons were shooting off their fireworks and singing and laughing, one witness said they were “hollering” too, and firing the pistols. When not far from tire prisoner’s house, a pistol shot was fired, which the prisoner said he heard. The homicide occurred just at the prisoner’s gate, and in, the road. The evidence is contradictory as to what occurred then and there.
The evidence of the State tended to prove that the prisoner, armed with a dangerous knife, came from the house, after the discharge of one Roman, candle, into his yard, and made a sudden and furious assault upon the three masked men, in which one of them, Cawthorn, was killed, and another of them, Winfrey, was -dangerously wounded; that they had not stopped at the gate^ but were passing on, and were merely Christmas revelers.
The evidence of the defense tended to show that the three, men had stopped at the gate, discharged fireworks into the prisoner’s yard and near his house, and had so frightened the prisoner that he was alarmed for his personal safety; that he took up the knife and went to the gate, whereupon he was *618seized by the man who had the pistol, and who- had thrust it into his face, and that he commenced to use the knife in self-defense.
Amongst other things, the Court charged the jury that: “If the assault was prompted by the occurrences of Wilming'-ton, and the rioting at Selma, or either of them, this would be a circumstance from which the jury might infer premeditation on the part of the prisoner.”
That instruction -was so great an error, when considered in the light of the evidence, that a. recital of the evidence, and the whole of it, on that point, will make that error manifest without any extended discussion of it, and we therefore give the whole of that evidence:
In his evidence Winfrey said he “carried the pistols because I thought something might happen to me. The white folks and negroes had been rioting in Selma that day. I was going to deliver one of the pistols to Charlie Roberts.”
J. H. Parker testified that he was mayor of Selma (and to quote his language) : “I saw some fighting and shooting-fireworks that day; the white men were beating negroes; they were using Roman candles; a white man beat a negro with a stick; one man shot a negro with a rifle; did not see prisoner participating in the row, and did not hear' him say anything about it.”
J. T. Ellington, sheriff of the county, testified that the prisoner, after he had surrendered himself into his custody, said: “He had not been able to sleepy and had had a dream.” The prisoner further said: “He had been reading about the Wilmington troubles, and thinking about them until he could not sleep, and that when he saw men in disguise he thought they had come to1 kill him.”
Lawrence Smith, the father of the prisoner, testified that he “had never heard prisoner say anything about the Wilmington trouble.”
*619Tbe prisoner testified: “I was not mad because of what my wife told me, and because of what I had read about the Wilmington affair. My wife told me she saw someone shooting at Henry Richardson, and I said it was a shame.” He further testified: “I then heard some shooting. I was scared. I was frightened because I heard shooting, and had heard that there had been a riot at Selma that evening.”
The above is every word of the evidence in reference to the matters embraced in his Honor’s charge, which we are considering. It is hardly necessary to add that that testimony did not justify the charge. The testimony, instead of furnishing evidence of malice or hatred against the white race or against those three masked persons from which premeditation to kill could be inferred, directly established abject terror and fear, on the part of the prisoner, for his personal safety. The charge must have had a most damaging effect upon the rights of the prisoner, for it directed the attention of the jury to a motive for the homicide, in the prisoner’s breast, which the testimony, in all its bearings, had not tended to prove.
We will not consider the other exceptions raised on the appeal. While' the record discloses that there was too much of passion on the part of the prosecution for the State, in the trial below, it further shows that that fact was acknowledged; and it may be expected that on the next trial the error will not be repeated.
Every citizen of North Carolina on trial for crime should feel, if he is really innocent, that he has nothing to fear, and in all cases that the prosecuting officer is not his enemy. There must be a