llierc is a difference in the cases ©f these two defendants, and they will require to be separately considered. But there are some observations applicable to both. Both were indicted for the murder of Butner, and both were convicted of manslaughter.
The case apparently professes to set forth all the evidence' given upon the trial. But probably it omits some that was-given, because the instructions asked for by the counsel for the defendants, and those given by the Judge, seem to bé founded on the assumption of certain facts, which do not appear, or at least do not directly appear, in the evidence set forth.
1. We will first consider the ease of Matthews. The facts-in evidence as they relate to him, stated generally, were these : Butner (the deceased) and the two defendants and some others, were in a public road. Humphreys charged Butner with having sworn-to lies against him and said he could prove it by Matthews. According to one witness (Frank Matthews) he said to Butner, “ Damn you I will shoot you, you swore damned lies against me, and I can prove it. Oome up here Sidney Matthews.” This witness-*530■states that “ Matthews then stepped up. Deceased advanced three steps and struck Matthews a back-handed lick, knocked him on his knees and stamped at him. When-Matthews was down, he was partly on his side and the stamping was about his legs, and then his body.”
Enoch Matthews testified substantially as above, except that he does not say that deceased advanced upon the defendant Matthews. He says that as defendant Matthews stepped up, deceased struck him and he fell partly on his hands, when deceased kicked him, &c. Matthews l’ose and .about that time deceased commenced falling backward, rose a second time, staggered and fell, and died in a short time. 'No witness saw any blow with a knife given.
Carter, a witness, says that when Matthews rose to his feet, he saw him and the deceased standing confronting each •other with knives in their hands, when deceased soon fell, and in a few minutes died. He died from a wound inflicted by a knife in his thigh about six inches below the groin. It is evident from the testimony that if Matthews gave the wound, as the jury must have believed that he did, it was given while he was on his knees, or otherwise prostrate on the ground.
The Judge allowed it to be given in evidence that he-was small, crippled and one-eyed, and that the deceased was a strong man, but refused to allow the defendants to prove his character for violence. The defendants excepted, and’ we think that the Judge should have received the evidence, as coming within the exception to the general rule against such ■evidence, established in Turpin’s case, 77 N. C. 473.
The issue made by the evidénee in this case was, did Matthews give the wound in self-defence ? Our opinion on this point would entitle the defendants to a new trial. But ■other questions are presented in the. case which may again •occur upon a second trial, and upon which the defendants are entitled to our opinion.
*531The defendants prayed for certain instructions which, -the ■Judge read to the jury, aud stated that while they embodied correct principles of law, yet he would lay down the following rules for their guidance in this case, &c. This language was a virtual refusal to give the instructions. In this we think the Judge was right, because they were less ■favorable to the defendants than what they were entitled to have.
The first of these instructions is defective, rather than ■positively erroneous. It should have added tothe hypothesis that Matthews “ had reasonable ground to apprehend,” Ac., the further words, “ and did apprehend,” &c. It might also advantageously have used some other equivalent words, in the place of “ felonious assault,” which although strictly correct, the jury were not likely to understand.
The second is more objectionable. It seems to assume that there was evidence from which the jury might reasonably and justifiably find, that Matthews “ was willing to engage in the difficulty between the deceased and Humphreys,” whereas we do not see in the case as presented to us any evidence of an intention on the part of Matthews to engage in the fight to which Humphreys had challenged the deceased. It is true he “ stepped up ” when he was called on by Hum-phreys to prove what he had said, but whether with the intention to affirm or to deny the statement of Humphreys does not appear. Certainly the mere fact that he stepped up ■or as one witness says, seemed to be passing deceased when deceased struck him, would not tend to prove an intention to get into a fight with the deceased, and the law presumes in favor of every man’s innocence, and requires a criminal intent to be proved.
Strictly speaking the defendants, in order to make evidence of the violent character of the deceased competent, should have offered to prove that it was known to Matthews. But there was some evidence of that in the fact *532that they lived in the same neighborhood and were acquainted.
We proceed now to consider the instructions given by the -Judge in lieu of those asked for. After correctly defining murder, manslaughter and excusable homicide, he says to the jury in substance, that when a homicide is proved, the law presumes malice, but the presumption may be rebutted by circumstances appearing in. evidence whether put in on the part of the State or of the defendants. To this there can be no exception. The error of the Judge in this part of his charge was omission only. But we think in a case like this he was required to go further than he did, and to inform the jury that if they believed the witnesses who were uneontradicted, that the circumstances in evidence did rebut the presumption of malice. As malice is a presumption which the law makes from the fact of killing, it must necessarily be a matter of law what circumstances witl rebut the presumption. The jury must pass on the existence of the facts which constitute the circumstances, but the Judge should instruct them, as matter of law, that if certain facts which the evidence tends to establish have been proved to their satisfaction, the presumption of malice is rebutted and they must acquit the defendant of murder. State v. Hildreth, 9 Ire. 429. Whether the presumption has been rebutted or not is a question of law just as legal provocation, sufficient cooling time, deadly weapon, reasonable time, negligence, &c., are. State v. Craton, 6 Ire. 164; State v. Collins, 8 Ire. 407; State v. Sizemore, 7 Jones 206.
In State v. Hildreth, 9 Ire. 429, the Court say: “ It is the undoubted province and duty of the Court to inform the jury upon the supposition of the truth of the facts as being agreed or found by the jury, what the degree of the homicide is. Foster Cr. L. 255; State v. Walker, N. C. T. R. 231. If it -were not so, there would be no rule of law by which a killing could be determined to be murder, but the whole *533matter of malice or alleviation would 'fall to the discretion and decision of the jurors in each particular case, and there would be no mode of reviewing it so as to reverse the decision though erroneous. There could be no tyranny more grievous than that of leaving the citizen to the prejudices of jurors, or the discretion of Judges, as .to what ought to be deemed an offence, which should or should not deprive him of his life. The only security for the accused is for the law to define a priori, what shall constitute a crime, and in the case of capital punishment, when it shall be inflicted.
It is one of the praises of our law that such have always been its provisions. The presiding Judge therefore did not transcend his power, but performed simply his duty in directing the jury upon the point whether the killing here .amounted to murder or manslaughter taking the facts to be as deposed to by the witnesses.”
The Judge in this case left the question of murder an open one for the jury, and without disregarding his instructions they might have found the defendant guilty of that crime, although there was no evidence of express malice, and the vlegal presumption was vrebutted by the testimony of every witness as to the sudden and unexpected beginning of the .affray. It cannot be said because the jury found the defendant guilty of manslaughter only that he was not prejudiced by the omission of the Judge. The true question was between manslaughter and homicide in self-defence. The attention of the jury was distracted from that by their being required to pass on the question of murder which was contradicted by all the evidence, and the defendant was compelled to present his defence to them, burdened by a weight of accusation from which he ought to have been re-' lieved by the instruction of the Judge.
The instructions were erroneous in other particulars. 'The Judge said : “If it appeared from the circustances of •the case, * * * that Matthews had reasonable ground *534to apprehend that' his life toas in imminent danger, he was. justified in taking the life of his assailant, but there must be a necessity for taking life from the fierceness of the as* sault, &c., before he could be excused on the ground of self-defence.” The Judge omitted here to say that Matthews-must have believed in the reality of tne danger, and he omitted also a much more important portion of the rule which he undertook to lay down. It is said in all the authorities, and cannot be doubted, that if a man who is assailed believes, and has reason to believe, that although his assailant may not intend to take his life, yet he does intend and is about to do him some enormous bodily harm, such as maim for example, and under this reasonable belief he kills his assailant, it is homicide se defendendo and excusable. It will suffice if the assault is felonious. Foster 274. No doubt the omission of this qualification of the rule was-simply inadvertent. We think there are other expressions of the Judge which were incorrect as not being applicable to the evidence, and likely to be prejudicial to the defendants. But it is unnecessary to consider them.
2. We pass now to the case of Humphreys.
As to him the Judge told the jury that, “if he was present and did or said anything calculated and intended to make known to Matthews, that he would help if need be, by taking part in the fight, or keeping others off^or if he agged him on, he would be guilty of aiding and abetting, and-equally guilty with Matthews. ”
This is perhaps a correct statement of an abstract principle of law. We are not called on to decide upon that. The error as we think, is, that it was too general and did not with sufficient particularity furnish the jury with a rule which they could apply to the facts as they might find them to be. The evidence as to Humphreys so far as it is material, may be briefly stated thus : ' When' first seen by the witnesses he was cursing deceased ; said he had sworn, *535to a'damned lie, and called on Matthews to prove it. When deceased knocked Matthews down, Humphreys put his. hand in bis pocket and said he would shoot the damned rascal, when his wife seized and held Mm until deceased fell. Another witness testified in substance that before Humphreys called Matthews up, he said to deceased,. “ Damn you, Til shoot you, &e.,” and that when Matthews was down, Humphreys said, “ Stand back from the son of a bitch ; I am going to shoot him,” when his wife held on to him &c. He olid.not shoot.
The Judge left it an open question to the jury, whether or not this defendant was guilty of murder. If he erred in this respect as to Matthews, he of course erred as to Hum-phreys. As he did not commit the homicide, there was no presumption of malice in him to be rebutted. To make-him guilty of murder there must have been a concert be-tiveen him and Matthews to kill the deceased, of which, there is no evidence, and which the jury have negatived. It ivas therefore quite as'unfair to him as it was to Matthews,, to compel him to argue before the jury against this accusation.
In another respect the charge of the Judge presented the-ease of this defendant to his prejudice. He had challenged the deceased to fight with him. Bat there is no evidence-tending to prove that he intended or expected the fight which took place, that is, one between Matthews and the ¿leceased. All the evidedee shows that this fight was sudden and unexpected. If Matthews acted in self defence, of courso Humphreys was guilty of no crime. The instructions assume that Matthews ivas guilty of same, crime, either murder or manslaughter, and put to the jury the issue whether Humphreys abetted him. If the Judge had said,, if you find Matthews guilty of manslaughter, then, if daring the fight and before the fatal wound was given, Humphreys, did or said anything &c., his instructions would have been *536•unobjectionable so far as they went. But they would even then have been imperfect and unfair, in not calling’ ■the attention of the jury to the imperfection of the evidence :as to the participation of Humphreys. "What he said or did before the fight began must be excluded from consideration, for although it was calculated and intended to provoke a breach of the peace between him and the deceased, it wras neither calculated nor intended to provoke a fight between Matthews and the deceased. What he said after the fatal wound was given must also be excluded, because it could not encourage, aid or abetMatthews to give it. The testimony as to the conduct of Humphreys while the fight was going on, is, that when Matthews fell, Humphreys put his hand behind him and said he would shoot the damned rascal, when his wife seized and held him until deceased fell. Another witness says that Matthews while he was down, said, “ Fellows don’t let him kill me, ” when Plum-phreys said, “stand back from the son of a bitch, I’m going to shoot him,” when his wife seized him, &c.
What Humphreys said was calculated to encourage Matthews, and the jury might not unreasonably have found ■that it was said during the fight and before the fatal wound was given, and that Humphreys was a principal in the manslaughter. But they might also have found that Hum-phreys reasonably believed that Matthews was about to be feloniously killed, and interfered to the extent that he did to prevent a felony, as he lawfully might. We cannot say which of these views the jury might have taken. The ■error of the Judge consisted in his failing to present particularly to the jury the law applicable to these hypothetical ■cases, which are the only ones that could arise and which did arise, on the evidence, and in leaving it to them in a general way, and wfithout any particular instructions, to •find whether Humphreys did or said anything to encourage Matthews.
*537It will be seen from tlie manner in which we have reviewed the instructions of the able and learned Judge who presided at this trial, that in our opinion a Judge who presides at a trial in which human.life is' at stake, does not fully perforin the duties which his office imposes'on him, by stating to the jury, however correctly, principles of law which bear more or less directly but not with absolute directness upon the issues made by the evidence in the case. To do that only, is easy and almost mechanical. "We think he is required in the interest of human life and liberty, to state clearly and distinctly the particular issues arising on the evidence, and on which the jury are to pass, and to instruct them as to the law applicable to every state of the facts which upon the evidence they may reasonably find to be the true one. To do otherwise, is to fail to “ declare .and explain the law arising on the evidence, ” as by the Act of Assembly he is required to do. C. C. P. § 237.
To do this requires the exercise of a cultivated intelligence, and to do it in a complicated case in the necessary haste of a jury trial, so as to stand subsequent examination, is one of the highest efforts of the mind. The ablest Judges, although assisted by able counsel, do sometimes fail, and when that appears, it is the imperative duty of a Court of appeals to order a new trial. State v. Dunlop, 65 N. C. 288. An application was made to this Court to reduce the amount of bail required of the defendants by the Court "below after their conviction, as being excessive. The decision granting them a new trial renders any decision on the application unnecessary.
Per Curiam. Venire de novo.