Before the case was submitted to the jury, the prisoners’ counsel suggested a diminution of the record from -Richmond superior court, and moved for a certiorari on the .ground that it did not appear that the prisoners were arraign-■edin open court, and that «the solicitor had not entered a similiter to the tender of issue on the plea of prisoners. The motion was refused and the prisoners excepted. Both of -these exceptions were properly overruled. The first, because *357the transcript of the record does show that the prisoners were brought to the bar of the court by the sheriff of Richmond county and arraigned on the charge of murder and plead not guilty, and were then remanded to the jail until the further ■order of the court in the cause. It has been held that where a record shows that a prisoner was brought to the bar in custody of the sheriff, and then, setting out the drawing of the jury and their verdict contains the entry — “ the prisoner is remanded” — the presence of the prisoner during the whole trial appears with sufficient certainty. State v. Craton, 6 Ire. 164; State v. Langford, Bush., 436; State v. Collins, 8 Ire., 407’ The second, because there is no necessity for entering a sim-iliter on the record. It may be done ore teams. State v. Carroll, 5 Ire., 139 ; State v. Lamon, 3 Hawks, 175.
2. The prisoner introduced no testimony, but offered to prove that deceased was a man of very dangerous and violent character. His Honor refused to admit the testimony and the prisoner excepted. The exception was properly overruled. State v. Hogue, 6 Jones, 381; State v. Barfield, 8 Ire., 344. The general rule upon this subject is laid down in these cases to which there are some exceptions (Turpin's case, 77 N. C., 473) but this case does not fall under them.
3. The ñrst three instructions prayed for by the prisoner are predicated upon the idea that this is a case of excusable homicide, but there is no evidence in the case to warrant such instructions. Before the prisoner could excuse himself for the act of killing, he must have shown that he quitted the combat and retreated as far as he could before the mortal stroke was given, or was prevented from doing so by the fierceness of the attack, or that he was " sorely pressed ” and killed the deceased to save his own life or prevent great bodily harm. State v. Ingold, 4 Jones, 216; State v. Hill, 4 Dev. & Bat., 491. In our case there is no pretence that the prisoner was reduced to any such necessity. There is no error in the refusal to give the instructions.
*3584. Nor was it error in the judge to refuse the fourth instruction, because there was no evidence to warrant it, and there was no evidence that the prisoner threw down the deceased in sport, or that they were engaged in a fist fight. It is the duty of the judge to lay down the law to the jury as applicable to the evidence introduced, and it is not error in bitn to refuse to give a charge upon a supposed state of facts which do not appear in the evidence. State v. Rash, 12 Ire., 382; Brown v. Patton, 13 Ire., 446; State v. Peace, 1 Jones, 251; State v. Haney, 2 Dev. and Bat., 390.
5. In the abstract, the fifth instruction asked for is a correct proposition of law, but is not applicable to the facts of this case. It is true as a general rule that where two men meet and fight upon a sudden quarrel, no advantage being taken, and one kill the other with a deadly weapon, it will be but manslaughter; and in such case it matters not which struck the first blow. The law presumes malice in every wilful'killing, and it is the provocation given in a mutual combat that extenuates the offence to manslaughter; therefore, in every case of killing upon sudden quarrel, the grade of the crime depends upon the character of the provocation. If the provocation be great, it will be but manslaughter ; but if slight, and the killing be done with a degree of violence out of all proportion to the provocation, it will be murder. State v. Curry., 1 Jones, 289. There, Chief Justice Pearson defined the exceptions to the general rule to be: 1st. Where there is a strong provocation and the killing is in an unusual manner, it is murder. 2nd. Where there, is but slight provocation, if the killing be done with an excess of violence out of all proportion to the provocation, it is murder. 3rd. Where the right to' chastise is abused, if the measure of chastisement or the weapon used is likely to. kill, it is murder. See also State v. Hildreth, 9 Ire., 429.
We are constrained to hold that the facts of this case bring it within the second exception l The prisoner and his. *359■comrades were going from the town of Rockingham, intoxicated, cursing and using vulgar language. They met the deceased quietly coming along the piiblic road... They .all three laid hold on him and threw him to the ground. He rose and struck at them with a rail, as he had the right to do, considering the overwhelming force opposed to him. But it does not appear that a blow was given. There is no proof that there were any bruises or marks of violence on the person ©f .either Of them, — and a blow with such an in-¡strmment would be apt to leave its -mark. The deceased was then knocked down with a rail, and while on the ground, the prisoner struck a't 'him as though with a knife- He rose tup, and the prisoner struck at him again as if he had a knife. The deceased then said “let me alone” and ran. The prisoner and James Chavis pursued him one. hundred .and thirty yards, overtook him and were seen to have him down in the road, and no doubt it was there he received the-last fatal stabs, for he never rose again; and in a few moments afterwards he was found lying-there badly stabbed in several places, and in a dying condition. A man endued with the ordinary feelings of humanity, no matter how high his passions may have been excited,, upon seeing his victim wilting in blood and struggling in the throes of death, would evince some relenting symptoms, but not so with the prisoner.. He • manifested no compunction fox his bloody deed, and when called by Jacobs to “come on, somebody was coming,” he ripped with his knife against the fence and ¡said “ he would kill any dammed man that came there.”
We .think the cruel, brutal, and.excessive violence used by the prisoner was out of all proportion to the provocation .given by the assault with the rail under the circumstances. To use the language of Chief Justice Nash in the opinion ■delivered by him in State v. Howell, 9 Ire., 485, “ this case is relieved from .all doubt and uncertainty. The facts are few and simple, furnishing a full and complete instance in them*360selves of that malice which is. essential to constitute a case of murder; of that mala mem, a mind regardless of the obli' gations of social duty, and fatally bent on mischief.”’ "We-have carefully examined the record and find no, error. Let this be certified, &c.
Per Curiam. No error.