State v. Tilly, 25 N.C. 424, 3 Ired. 424 (1843)

June 1843 · Supreme Court of North Carolina
25 N.C. 424, 3 Ired. 424


June 1843

In an indictment against an overseer for the murder of his employer, it is not competent for the- prisoner to offer evidence of the general temper and deportment of the deceased towards his overseers and tenants.


It is not competent for a prisoner indicted for murder to give in evidence his own account of the transaction related immediately after it occurred, though no third person was present when the homicide was committed.

It is not error in the judge to tell the jury, on the trial of an indictment for murder, that “ if they believed from the evidence that the prisoner- had malico against the deceased on the morning of the day when th^ killing occurred, and there was no evidence that such malice was abandoned, even if the prisoner accidentally fell in with the deceased, the question of manslaughter could not arise, as the malice would exclude provocation it being clear from the context of the charge that the malice spoken of was the purpose to hill or do great bodily harm to the deceased-The language of ajudge in his charge to a jury is to be read with reference to the evidence and the points disputed on the trial; and, of course, is to be construed with the context.

Although a person may not go in search of or lie in wait for another, whom he kills, yet if he has formed the purpose to kill him, and, within a short ■ time after forming and avowing snch purpose, he, duly armed, meets the other by chance, whether in public or in secret, and slays him immediately, there is a presumption that he did it on the previous purpose and grudge, if there be no evidence of a change of purpose.

The case of the State v Johnson, 1 Ired. Bep. 354, cited and approved.

Appeal from the Superior Court of Law of Guilford Comity, at Spring Term, 1843, his Honor Judge Battle presiding.

The defendant was tried upon an indictment for the murder of William G. Martin. On the trial, Rebecca Goff, the first witness for the State testified that, at the time of the homicide, 9th September last, she was a single woman, living in the family of the prisoner, who was an overseer of *425the deceased on a plantation in Stokes, about 4 miles (rom the place at which the deceased used to reside — that in the evening, before it took place,- the deceased was superintending the mowing of the meadow and putting away the hay, on the said plantation, over which the prisoner had no supervision. While the deceased was so engaged, she testified that the prisoner, being then at the house with the witness and his wife, cursed and abused the deceased with great bitterness, said his house was about to be watched that night, and he would see who watched it — that he went out into the yard when it was supposed the deceased was about to pass with the hands and Ox-cart from the meadow, but the deceased did not pass by. On cross-examination, she stated that the prisoner said the deceased accused him of trading with his negroes, and therefore was going to watch. She stated, that, after the return of the prisoner into the house, he said that the deceased accused him of not working enough and running about — that (he deceased was the meanest man living, he would not take as much from him as he had done — that the devil was getting in him (prisoner) stronger and stronger every day — that he had had 12 fights in one year and whipped every time — had whipped better men than the deceased. When supper was prepared he refused to eat, saying the devil was too strong in him fbt him to eat-^-and wished he had a dram. The next morning he said the devil was still in him — went off to carry to a neighbor’s house a cross cut saw, which had been borrowed to saw board timber, and returned with ardent spirits — cursed the deceased and said, that whenever Mai tin heard liis horn blow, he came around the fields. And he then went out into the yard and blew his horn. He then went off to where the hands were at work. In about two hours he came back in a hurry and got his gun, loaded it in great haste in the yard. Witness asked him what he was going to shoot, he replied nothing much” and went off in a run, in the direction from which he came, having driven back his hounds, which were about to follow him — that he both came from, and went in the direction of the Board tree. Soon there*426after a negro man of the plantation came to the house where the witness was, on the riding horse oí the deceased, (which ' i'ode and kept at his own house) for a Frow to rive the timber into boards, got it and went in the direction of the tree. A short time after this, another negro of the -plantation came running from the same direction in great alarm with the intelligence of the killing. On her cross-examination she stated, that the deceased had been at the prisoner’s house about sun-set of the afternoon previous to get a webb of cloth, that the prisoner’s wife had woven for him, ■but the prisoner was not then at the house — also that she heard no cry of hounds in the woods at the time — that the prisoner hurried off with his gun as before stated. The counsel for the prisoner admitted that the deceased had been slain by the prisoner, but alleged that it was done in self-de-fence — and offered to shew what were the acts and declarations of the prisoner, made immediately after the transaction, upon his return to his house, in relation to it. On objection by the State, his Honor ruled that the declarations of the prisoner after the homicide were not admissible, unless of-by the State, in which event, he had a right to all that he then said. But that he had a right to give in evidence, what was his conduct and demeanor after the killing. Fie then shewed by this witness, as well as others, that, about a hour after he had gone off with his gun, he returned to his house — made no effort to escape — -that the line of the State of Virginia was about 10 miles distant — that he went off to some neighbor’s houses and asked them to view the body of the deceased, and sent for a magistrate — staid at home all the night following, and made no effort to escape or resist when arrested the next day.

Christopher Eaton, a witness for the State, was mowing for the deceased in the meadow aforesad — the deceased came there on his riding horse in the forenoon, was in jocose conversation with him an hour or two, when a cloud rising, the deceased went off in the direction of the board tree aforesaid to get the prisoner and the hands to help to put up the hay. About an hour afterwards one of the negro men came gal*427loping to him on the riding horse of the deceased, with the alarm of the homicide. Witness went then to the house of the prisoner, about a mile from the meadow, and meeting the former witness and the wife of the prisoner and one Breed-love at the spring, they all walked to the house together— they found' the prisoner there. Witness went then with Breedlove to the board tree, and saw the body of deceased lying dead, and also an axe, his head badly wounded and very bloody. Spattered blood or other fluid of the body was also visible on the leaves around and on the helve of the axe, which had the appearance of having come from the right side, and a drop on the axe itsell which lay near him.— Witness testified that he saw no marks of a scuffle or ren-countre at the place, and that a heavy shower of rain fell after he left, and before any other person came.

Ann Sturdivant, a sister ol the first witness, saw the prisoner at the house of one Watson, his brother-in-law, two weeks before the homicide — he had pistols, and on being asked by Mrs. Watson why he carried them, he said he expected to meet out that d. — d long nosed Bill Martin.

Jackson Goff., who had married the first witness since September, stated, that he had often seen the prisoner carry a dirk and pistols — that at a gathering to raise a mill 2 or 3 weeks before the homicide, the prisoner used his dirk in killing some rats secreted in the mortices of the timbers.— Upon being then asked why he .carried such a thing, he said he carried it for deceased whom he cursed; and characterized by the epithet before stated. The prisoner was then on his way from Salem, had a pistol in his carry-all— said he had been to sell tobacco to get money to pay a judgment in favor of the deceased, which one Moses, a constable, then present, held. He paid Moses the money, again cursed the deceased as before, and advised Moses not to pay it to him for 3 months, saying that he could not be sooner obliged to do it — Moses replying that he paid' plaintiffs in execution the first time he saw them — the prisoner replied he hoped he would not see him (cursing the deceased as before! in that time.

*428 Martin Gordon testified, that, a few days before the killing) he asked the prisoner if the deceased had been over, and how they got on. The prisoner replied that the deceased had been there, and that he behaved like a saint— that he, the prisoner, was glad of it, he would do any thing to oblige the deceased, if he would treat him properly. But he expected they would come together ; and if they did, he wished it to Ije where no one was present but negroes. If Martin could give it to him, he would take it for his share; and if he could give it to Martin, d — m him, he should take it — they would make it a counter one way or t’other.

Susanna King testified to a conversation with the prisoner 3 or 4 weeks before the homicide, in which, she said, he threatened (at Judgé Venable’s in the neighborhood in which they lived) to kill the deceased, if he ever treated him as he had done — the details of which conversation she gave at length, and said that said Venable and his wife were present.

Elizabeth King, a sister in law of the last named witness, swore, that on the day after this alleged conversation, the said Susannah told her there would be murder, and related the conversation with the prisoner as she had sworn in the trial. The said Jesse Venable and Charity, his wife, were called by the prisoner and swore, that the prisoner and Susannah King were at their house at the time spoken of, and conversed together, but that no threats were made by the prisoner against the deceased.' Mary Francis, a witness for the State, also detailed a conversation of the prisoner, two or three weeks before the killing, when he came to her father’s with a bottle of spirits, cursed the deceased, saying that he, (the deceased,) had cursed his, (the prisoner’s,) gray headed father, and told him, that “if he could not stand his hand with him to fetch his crew — that the prisoner was one of old David Tilly’s crew for him.” He said he, the prisoner, had been accused of many offences which he named— and had been accused of stealing the corn of the deceased, and that the deceased had ordered his negroes to whip Jerry Slaughter, a man who formerly had lived on his plantation. *429 John II Bitting and Alexander King, bath minutely scribed the situation of the body of the deceased, as it was found on the assembling- of the neighbors. The tree for ° ° making boards was felled from North to South, on the bank of a small branch, and parallel to the stream, the stump being up stream. A pathway, worn by stock, crossed immediately above the stump, and formed the most convenient way of going to the position of the deceased from the prisoner’s house. The tree had been sawed into timber for boards to cover a tobacco barn — and two of the cuts had been split into billets ready for riving. These billets lay on the ground, one of them under the body of the deceased, another with the end riding on the log near to where it was last sawed ofF. Beyond this, paralel to the log, was a brake partly prepared for riving boards — that is to say, there was a- pole with two stubbs or pins driven into the earth to fasten it at the end nearest the tree top, and one stubb partly driven into the ground at the other, near to the deceased — that the stubbs were battered at the ends, and had been apparently driven with an axe — that the axe lay with the helve from the deceased, about four or five feet from the partially driven stubb, and two feet and one inch from the elbow or arm of the deceased, The feet of the deceased were near the end of the log where last sawed off, and he lay on his belly inclining to the left side — his left hand across the abdomen, and the right above it in front of the breast, with the fore-finger pointed to his mouth. His hat lay under him, about the groin, unbroken in any way, but bent up by the pressure upon it. He was dressed in but a shirt and pantaloons — in the pocket of the latter was found a small pocket-kuife unopened. The body lay nearly perpendicular to the tree. All the witnesses agreed that at least two blows had been given on the head, and some supposed three or more. One, which had broken the skull, was on the right side of the head near the top, ranging at a considerable angle with the horizon, the highest part being nearest the forehead. Another wound was larger and lower down, passing nearly horizontally across the right side of the head, and cutting ofli the upper *430portion of the ear. Tiie fracture of the skull in this wound, exten(ied into the upper one, and the whole side of the head had been broken so as to yield easily to pressure. A portion of the skull bone had fallen out and lay on the shoulder of the deceased. There was a cut apparently breaking the skin across the back of the head. King also said, that there was a wound across the right side of the head, just below the ear. Just behind the body lay three large fragments of the gun of the prisoner, which was well known the witness, and some smaller pieces of the stock lay in front of his face. It was a long smooth-bored gun, with a thick heavy barrel— the barrel and stock were broken off about a foot and a half from the muzzle — blood and hair were found at the point of breaking on the lower end of the barrel — and a mark on the ground was found, in which the muzzle end of the barrel fitted, in front of the face of the deceased. By putting the muzzle in that mark, and fitting the other part to it, they were found to join at the large wound on the head of the deceased. The mark on the ground, and the situation of the wound, induced the belief on the part of three witnesses, that the blow which caused it, had been given with the gun from behind — the gun-barrel was found loaded, and so continued until the load was drawn in the presence of the court and jury. It was heavily charged with rifle bullets, buckshot, and some misshapen pieces of lead or slugs. The witness King, also testified, that two or three weeks before the killing, the prisoner and deceased came to his house to refer to him a matter of difference about some wheat which had been grown on the said plantation that year. — that much ill feeling was manifested between them, and they wrangled nearly all day. The deceased cursed the prisoner for a d-d rascal, and prisoner retaliated in like manner — the deceased also found great fault with the management of the prisoner at the plantation, and the neglect of business, and the prisoner excused himself by alleging, that what was charged as negligence, arose from neighborly acts of kindness to persons in the vicinity, and if he did not help them, they would not assist him in raising his tobacco barns — the *431deceased told him that he had hands enough, and to apply to him when more force was wanted than he had. Witness refused to settle their difference, and they finally agreed, and prisoner gave his note to the deceased for nine dollars, and they left in better temper apparently. To sustain his allegation, that the killing was in self defence, the prisoner inquired of several witnesses, whether the deceased was not of a violent and dangerous character. All of whom replied in the negative, but some of them said he was mischievous and addicted to teasing others jocosely. The prisoner also proposed to inquire, whether the deceased did not bear the character of being high-tempered, over-bearing, and oppressive towards his overseers and tenants, but the question was objected to and ruled out. Several witnesses were called by the State,» who testified that the deceased was a peaceable and orderly citizen. The prisoner called as a witness Polly Vaughan, who said she lived with her sister, about a mile and a half from the prisoner’s, and on the day of the killing, heard the cry of hounds in chase between 12 and.l o’clock, M, coming from the direction of Tilly’s, and passing beyond the opposite side of her house — .that she was acquainted with the cry of the prisoner’s hounds — these were not his, and she did not know whose they were. Also, William B. Boils, who said, that on the 4th ¡Saturday of July, 1842, he heard the deceased say, that if the prisoner did not mind, he would give him the d-est beating he ever had. Also, Reuben Vaughan, who said, that the deceased, on showing witness some corn, which the prisoner had planted but never worked, cursed him, and said he would sue him. — . A\soy Joseph Falke and John Booze, who said that the deceased in their presence had cursed prisoner about a stray lamb, which, he supposed, the prisoner had marked in his (decased’s) mark, and said he would drive him off or whip him, if he did not do better. The prisoner was not present at any of these declarations. Also, Henry McCarter, who said that, on the election day in August, he and the deceased were riding together when the deceased said, he wished he might land in h — 11 if he did not put a stop to Tilly’s hunt*432ing, and would go and catch him that evening. On cross-examination, he said he had seen the prisoner with pistols, and heard him speak of the deceased’s telling his father that 1 s he didn’t mind him or his crew. Also, Jesse Cox and William E. Simmons, each of whom testified to separate conversations of the deceased; the former, that he, deceased, would drive or kill the prisoner; and the latter, that if the prisoner did not do better, he, the deceased, would kill him before the year was out. As to the two latter witnesses, the State called several persons, who testified that Cox’s character was bad asa man of truth, and that.Simmons ivas notoriously infamous for dishonesty, and that they would not believe him. The prisoner called sundry witnesses, who swore that he went or sent for them, soon after the homicide, and they went the same day and saw the body of the deceased. He also proved Falke and Booze to be persons of good character. He also called Floyd Webb to sustain Simmons, who swore that some time before the homicide, Simmons told him, that Martin or Tilly would be killed that year, but why Simmons thought so Webb, could not recollect.

The State then called witnesses who stated that the prisoner was a right handed man, but could work tolerably well with either hand — and that Polly Yaughan, defendants’ witness, was a low prostitute.

For the State it was contended, that the prisoner left his house with his gun, as described by Rebecca Goff, to attack the deceased — and that from the situation of the felled tree, the dead body, the wounds, the brake, axe &c., it was to be inferred that the deceased was standing with his hat in hand, at the point where his feet were found, looking at a negro, who was, it was admitted, driving the partially driven stubb, when the prisoner crossed the branch above the stump, approached him behind and struck him with the gun, felled him and beat him to death — or that, even if there was a sudden rencontre (casting out of view the evidence of previous malice) the wounds &c. shewed that undue advantage was taken, by which the killing could not even be ex*433tenuated to man-slaughter. For the prisoner it was that fee took his gun to shoot a deer then chased by hounds— that from the evidence in relation to the previous declarations of the deceased against the prisoner — his not shooting the deceased with his gun, the position of the axe, and the other circumstances in evidence, it was to be inferred, that the deceased had made a sudden attack on the prisoner with the axe, and that the latter was under a pressing necessity to kill to avoid death or bodily harm to himself — that if this were not so, it was to be inferred that the deceased was slain in a mutual combat on equal terms, and that the killing was but manslaughter at the most.

His Honor, after explaining to the jury the difference between the three species of homicide, murder, manslaughter, and excusable homicide, charged them that the admission of the prisoner, that he had slain the deceased, made the homicide a case of murder, unless he could shew from the testimony introduced on the part of the State or in his defence, that there were circumstances of provocation to mitigate the-offence to manslaughter, or of excuse to reduce it to excusable homicide in self-defence ; that in the examination of the testimony, it became important to ascertain the purpose for which the prisoner-loaded his gun 12nd left his house on the day of the homicide, and, in doing this, they must consider with care the testimony of Rebecca Goff and Polly Vaughan, and that of others that might bear upon this part of the transaction, and they must take into their consideration the characters of the two witnesses named; that if they found that the prisoner left his house with a settled purpose to seek the deceased and kill him of to provoke him into a fight that he might have a pretext .to kill him, it was a case of murder; that, if they believed from the testimony of Rebecca Goff, that the prisoner had malice against the deceased on the morning of /the day when the killing occurred, and there was no evidence that such malice was abandoned, even if the prisoner went out with his gnn to shoot a deer and accidentally'fell in with the deceased, in such case the question of manslaughter could not arise, as the malice would e&*434dude provocation, and the only enquiry would be between murder and excusable homicide ; and that, to excuse the homicide, they must be satisfied that the deceased had made ’ J an assault upon the prisoner, endangering his life or threatening his person with great bodily harm, and he must have done what he could to avoid the necessity of killing, before he gave the fatal blow. That, if malice were excluded and the recontre a sudden one, then the parties must have fought on equal terms and the prisoner must not have taken any undue advantage of the deceased, to make the homicide a a case of manslaughter. The jury returned a verdict of murder against the prisoner, and his counsel moved for a new trial, 1st, because the Judge did not tell the jury they might reconcile the testimony of Rebecca Goff and Polly Vaughan, if they believed there was not discrepancy between them.

' 2nd. Because of- misdirection in law in saying that if there was malice in the prisoner against the deceased, on the morning of the day on which the homicide occurred, there was no evidence that it had been abandoned, and in saying further, that the only question in such case was between murder and excusable homicide.

3rd. For rejecting the testimony of the declarations of the prisoner, giving an account of the manner in which the homicide took place. .

4th. For rejecting the testimony offered- to show that the deceased was a man of high temper, overbearing and oppressive towards his overseers and tenants, and confining the enquiry to his being a violent and dangerous man.

The court overruled all the reasons urged for a new trial, remarking as to the first, if the prisoner’s counsel had desired the charge to be more specific than it was in the particular alluded to, he should have so asked, and it would have been given.

Sentence of death being pronounced, and it being admitted'by the Solicitor of the State that the prisoner was insolvent, an appeal to the Supreme Court was prayed and granted’ without requiring security therefor.

*435 *8.tlorneij General for the State.

Morehead for the prisoner.

Ruppin, C. J.

The court is -of opinion, that evidence of the temper and deportment oi the deceased towards hi-s overseers and tenants was properly rejected, for several reasons. In the first place it was irrelevant, as it did not profess to slate, that the deceased was in the habit of assaulting the persons in his employment, but, at most, of being overbearing to them, and provoking them by arrogant and abusive language. If all that be .admit ted, it does not raise an argument of an assault by the deceased on .the prisoner, but of ill words only: which would not palliate-the homicide. And, indeed, in a case in which there is no direct evidence of a mutual combat, or any appearance at the place of a scuffle, or any wound on the prisoner, or even the slightest mark o.f violence, it would be impossible that the jury could rationally infer an attack of any sort by the deceased, or even an effort at defence. Resides, this is not one of those points, on which character is evidence. Temper and deportment, are not matters to be proved by reputation.; but if they are evidence at all, they can be established as facts only by those who know them. A second objection taken is, that the court would not allow the account given by the prisoner .of the manner in which the homicide took place, to be proved as evidence for him. We concur in that opinion. As evidence, what a party sa.ys, is received against him, but not for him. It does not prove the truth to be as related; and the truth is the subject of enquiry by the jury. Jt does not matter that the account is not a recent one, but was given early after the transaction. Unless the declarations form a part of the transaction, they are not receivable in .evidence. When it was usual for the accused to conduct their own defence, such indulgence was shewn in allowing them to state their cases in their own way. But these were statements then made by the accused to the jury, face to face, and were received merely as statements combined with argument. So, at pre-*436Counsel, though they ought properly to confine their opening to the case they expect the evidence to establish ; do frequently take a greater latitude of statement, as being the truth of the case, as they are instructed by their clients; and, in permitting that, the courts have been also liberal. But it is unkown, that a party’s previous declarations have been proved by witnesses for him. as evidence to the jury of the true nature of the transaction in issue.

We think the exception taken to the terms, in which his Honor left the testimony of Goff ahd Vaughan to the consideration of the jury, untenable, for the reason given by the Judge for overruling it. But, in reality, directions “ to consider with care” the testimony of two witnesses, bearing upon a particular point of enquiry, in order to ascertain the truth on that point, with the further direction to consider in like manner the testimony of other witnesses that might bear upon the same part of the transaction, must be understood by the jury, as enjoining the duty of fairly comparing and weighing the testimony of each, and deciding against that part of the testimony, which could not be reconciled with other parts, in which the jury had more confidence.

The remaining exception is principally of importance, and relates to the manner in which the law was laid down, as to the degree of the homicide. But we think, that when understood as it properly ought, and, indeed, must have been understood by the jury, the proposition stated was correct. The language of the Judge is to be read with reference to the evidence and the points disputed on the trial, and, of course, is to be construed with the context. Here the prisoner contended that the homicide was, at the most, manslaughter, occurred on a sudden quarrel in a mutual combat on equal terms': and further, that it was excusable homicide, because the deceased made an attack on the prisoner with an axe, which was likely to kill or do him great bodily harm. It had been before admitted, that the prisoner slew the deceased ; and the legal inference was, that it was murder, unless mitigated by circumstances proved, and so the jury was informed : and there, as it seems to *437us, the court might have stopped, adding only that there was no evidence of any fact, which could reduce the offence below murder. For there is not a scintilla of what can be called proof, that there was a mutual combat, much less that the deceased made a deadly assault on the prisoner. We say, his Honor might have stopped as above, because the court is not bound to respond to a prayer to lay down abstract propositions to the jury, whieh do not arise on the evidence, nor to leave to them propositions of fact, to be guessed at, without proof. There was nothing to raise the.hypothesis, that the evidence was not all -on one side; and, therefore, the admitted killing was no' less than murder.

But the court in mercy proceeded to discuss the case more minutely. And, after laying down the general rule, that it lay on the prisoner to shew the mitigation, the court explained to the jury the nature of the three species of homicide, namely, murder, manslaughter, and that which is excusable. That explanation is not set forth; but no fault was found with it, and therefore we assume that those subjects were correctly defined ; as, for example, that murder was a felonious killing with malice aforethought, and, that malice, for this purpose, would be constituted by a deliberate purpose to kill or do great bodily harm with a weapon likely to kill. Having thus explained these questions to the jury, which they were to decide, the-judge informed them, that the homicide could not be excusable, unless there was an assault on the prisoner, endangering his life or threatening him with great bodily harm, and he did what he could to avoid the necessity of killing. Supposing that the jury could see nothing to constitute this a case of excusable homicide, the court then proceeded to inform the jury, how they might ascertain whether it was murder or manslaughter.— And upon the supposition of a mutual combat, excluding malice, that is to say, a previous purpose of the prisoner to kill or do great bodily harm, and supposing the affray to be sudden, the court informed the jury that the killing would be manslaughter or murder, as they might find that the prisoner (who used a deadly weapon.) had or had not taken un*438due advantage in the fight, so that it was not on equal terms, To nothing that was said thus far, which seems, as was before remarked, to have been sufficient to dispose of the whole case, was any exception taken. But the court proceeding to discuss .the question of malice, as -if it were necessary to the eonviction for murder to prove affirmatively the actual existence of it in the heart of the prisoner, stated two cases for the consideration of-the jury-: the first, supposing the prisoner to fiave left his house, immediately before the killing, with the settled purpose to seek and kill the deceased, or to provoke him to a fight, that he might have a pretext to kill him — in that case it was murder: and the second, “that if the prisoner had malice against the deceased in the morning of the day, when the killing occurred, as there was no evidence that such malice was abandoned, even if the prisoner went out with his gun to shoot a deer, and then accidentally fell in with the deceased and killed him, the killing would not be manslaughter, as the malice would exclude the notion of provocation, if any there was ; and the enquiry would be between murder and excusable homicide.” To the former proposition no objection was taken by the prisoner; but to the latter he has excepted.

In disposing of the exception, perhaps it might be sufficient to say, that there was no ground.for supposing a provocation, and that the chief objection to the instruction is, that it unnecessarily went out of the evidence to suppose a ease, in which peradventure the jury might find an excuse. There certainly appears no provocation, and without it the killing cannot be manslaughter. But supposing there was evidence of it, yet the case of the State v Johnson, 1 Ired. 354, sustains the instruction, as it must have been intended. The only objection to it, perhaps, is in the want of precision, as to the sense in which the term, “malice” is there used.— ■We admit, that his Honor did not express himself with his usual clearness. But in connection with all that passed, the meaning of it must have been correctly apprehended. The 11 malice,” required in the case supposed, must have been known to be, that temper and disposition of the prisoner’s *439heart towards tho deceased, which had been before spoken of and explained to the jury, as distinguishing the crimes of murder and manslaughter, namely, the purpose to kill or to do great bodily harm, to another.. Now, thus received, the instruction is not only within the principle, but the language in Johnson's case; with which case the courtis entirely satisfied. For although a person may not go'in search of or lie in wait for another, whom he kills; yet if he has formed the purpose to kill him, and, as here, within one or two hours alter forming and avowing that purpose, he, duly armed, meets the other by chance, whether in public or in se--cret, and slays him immediately, there is a presumption that he did it on the previous purpose and grudge, if there be no evidence of a change of purpose. When the thing designed follows so immediately the design formed, and in the manner purposed, it would be strange not to regard it as the execution of the design.

The court is, therefore, of opinion, that there is no error in the record; and this must be certified to the Superior Court, that the sentence may be executed.

Per Curiam. Ordered accordingly.