after stating the case: We have given the appeal the extended and careful consideration that a case of this character should always receive, and are of opinion that, on the facts as they now appear, the element of malice, required by the law as a constituent feature of the crime of murder, has been negatived, and that if on another trial the facts should be substantially the same, the prisoner is entitled to have his cause submitted and determined on the question of his guilt or innocence of the crime of manslaughter.
In S. v. Banks, 143 N. C., 652-656, speaking of malice as an element of the crime of murder, and of the suggested effect upon it of our statute dividing the crime of murder into two degrees, the Court said:
“There has been no change wrought in this respect by the statute dividing the crime of murder into two degrees (Revisal, sec. 3631), as to the element of malice which must exist to make out the crime.
“Both before and since the statute, murder is the unlawful killing of another with malice aforethought. See Clark’s Grim. Law, p. 187. This malice may arise from personal ill-will or grudge, but it may also be said to exist whenever there has been a wrongful and intentional killing of another without lawful excuse or mitigating circumstance. The statute does not undertake to give any new definition of murder, but classifies the different kinds of murder as they existed at common law, and which were, before the statute, all included in one and the same degree.
*829“Thus, all murder done by means of poison, lying in wait, etc., or by any other kind of willful, deliberate or premeditated .killing, or murder done in effort to perpetrate a felony, shall be murder in the first degree and punished with death. All other kinds of murder shall be deemed murder in the second degree, and punished by imprisonment in the State’s Prison.”
It will thus be seen that the constituent definition of murder remains as it was, and, while malice, in the popular sense of personal hatred or ill-will, is not always required, and may be said to exist whenever there has been an unlawful and intentional homicide without excuse or mitigating circumstance, its presence is always necessary to the crime of murder, whether in the first or the second degree. Manslaughter is the unlawful killing of another without malice, and, under given conditions, this crime may be established, though the killing has been both unlawful and intentional. Thus, if two men fight .upon a sudden quarrel and on equal terms, at least at the outset, and in the progress of the fight one kills the other — kills in the anger naturally aroused by the combat — this ordinarily will be but manslaughter. In such case, though the killing may have been both unlawful and intentional, the passion, if aroused by provocation which the law deems adequate, is said to displace malice and is regarded as a mitigating circumstance reducing the degree of the crime.
This position, and the reason upon which it is properly made to rest, is well stated by Judge Gaston, delivering the opinion of the Court in S. v. Hill, 20 N. C., 491-496, as follows:
“If instantly thereupon (after being previously assaulted), in the transport of passion thus excited, and without previous malice, the prisoner killed the deceased, it would have been a clear case of manslaughter. Not because the law supposes that this passion made him unconscious of what he was about to do, and stripped the act of killing of an intent to commit it, but because it presumes that passion disturbed the sway of reason, and made him regardless of her admonitions. It does not look upon him as temporarily deprived of intellect, and therefore not an accountable agent; but as one in whom the exercise of judgment is impeded by the violence of excitement, and accountable, therefore, as an infirm human being. We nowhere find that the passion which in law rebuts the imputation of malice must be so overpowering as for the time to shut out knowledge and destroy volition. All the writers concur in representing this indulgence of the law to be a condescension to the frailty of the human frame, which during the furor brevis renders a man deaf to the voice of reason, so that although *830 the act done ivas intentional of death, it was not tbe result of malignity of heart, but imputable to human infirmity.”
Our decisions are also to the effect that though there may have been previous ill-feeling between the parties, yet if they afterwards meet accidentally, and a fight ensues, in which one of them is killed, it shall not be intended that they were moved by the old grudge, “unless it so appear from the circumstances of the affair.”
This was directly held in the case of S. v. Hill, supra, where there had previously been a fight between the parties. The ruling being expressed as follows: “Where two persons have formerly fought on malice and are apparently reconciled, and fight again on a fresh quarrel, it shall not be intended,” etc. The principle was affirmed and again applied in S. v. Jacob Johnson, 47 N. C., 247, and in the opinion of this case is put by way of illustration: “But where A. bears malice against B., and they meet by accident, and upon a quarrel B. assaults A. with a grubbing-hoe, and thereupon A. shoots B. with a pistol, the rule of referring the motive to the previous malice will not apply.” And this is in accord with the doctrine generally prevailing.
Applying these principles to the facts presented, while the evidence tends to show that there was- some animosity between these parties, there was nothing in the conversations between them, according to any version of them, which would indicate a fixed and definite purpose to take the life of the deceased. The expressions imputed to the prisoner seem to have been in reply to a threat or boast by the officer that he could easily effect the arrest of the prisoner, and, according to all the testimony, the meeting in which the killing occurred was entirely accidental, certainly on the part of the prisoner. The witnesses for both the State and the prisoner who saw the occurrence say that the prisoner at the time was apparently leaving the town and going toward his place of work some distance away, when he was hailed by the' officer, overtaken, arrested without any warrant or any conduct that presently justified it, turned back and physically shoved along at least twice before he offered any active resistance. If these facts are established, we are of opinion, as'stated, that they repel the idea of malice, and the question is presented only on the issue as to manslaughter, and the judge should so have instructed the jury.
Speaking to the question, in S. v. Miller, 112 N. C., 885, an authority not inapplicable to the facts presented here, Avery, J., delivering the opinion, said :
“It is true that when the killing with a deadly weapon is *831proved and admitted, tbe burden is shifted upon tbe prisoner, and be must satisfy tbe jury, if be can do so from tbe whole of tbe testimony, as well that offered for tbe State as for tbe defense, that matter relied on to show mitigation or excuse is true. S. v. Vann, 82 N. C., 631; S. v. Willis, 63 N. C., 26; S. v. Brittain, 89 N. C., 481. But when it appears to tbe judge that in no aspect of tbe testimony, and under no inference that can be fairly drawn from it, is the prisoner guilty of murder, it is bis duty, certainly when requested to do so, to instruct tbe jury that tbey must not return a verdict of any higher offense than manslaughter, just as it would be bis duty to instruct, in a proper ease, that no sufficient evidence bad been offered to either excuse or mitigate tbe slaying with a deadly weapon. Though tbe law may raise a presumption from a given state of facts, nothing more appearing, it is nevertheless tbe province of tbe court, when all the facts are developed and known, to tell tbe jury whether in every aspect of tbe testimony tbe presumption is rebutted. S. v. Roten, 86 N. C., 701; Doggett v. R. R., 81 N. C., 459; Ballinger v. Cureton, 104 N. C., 474.”
Nor do' we think that tbe statement of tbe prisoner to tbe witness Shoemaker within five minutes of tbe occurrence should be allowed to affect tbe view we take of tbe case. This witness testified that, going to tbe place five minutes after tbe shooting, Henry Coffey said to witness, “Mr. Baldwin has shot Mr. Miller and killed him,” and witness said to Mr. Baldwin, “You have about fixed yourself to be bung, haven’t you?” and Baldwin replied, “I have done what I intended to do, and I don’t care what in tbe bell tbey do with me.” Tbe question as put by tbe witness was well calculated to arouse tbe prisoner, and the conversation at tbe time and place it occurred, and under tbe attendant facts, should be regarded, we think, as tbe not unnatural expression of an angered man who bad just passed through a fateful encounter with bis fellownian, and should properly be referred to tbe occurrence itself and not by any fair intendment construed as an expression of a preconceived definite purpose to kill?
In awarding a new trial to tbe prisoner, with an intimation that bis cause should be submitted to tbe jury on an issue as'to manslaughter, we give such intimation only on tbe assumption that tbe facts shall be again developed substantially as tbey now appear, and especially on tbe theory that tbe arrest of tbe prisoner was without a valid warrant or other lawful authority. Tbe court so held in tbe case, and tbe presumption is that this ruling was correct. If it should otherwise appear on a second trial, tbe case would be presented in an entirely different ¿spect. *832Under our authorities, the new trial is at large, and the case will be proceeded with in accordance with law and on the facts as they may be disclosed on a second bearing.
For the error indicated, there must be a new trial, and it is so ordered.