State v. . Carter

There was evidence tending to show, that the deceased had, a considerable time before the homicide, been talking about the sons of the prisoner; charging that they killed a hog, (whether it amounted to a charge of larceny does not appear,) and that the prisoner, in the absence of the deceased, had said that he would kill him if he did not quit talking about it. If that testimony was true, then there was express malice; and it would be a clear case of murder. But leave out that feature of the case, and then the facts are, that the prisoner went near the house of the deceased and asked the deceased, whether he had said that his sons had killed the hog? And upon the deceased admitting that he had, the prisoner shot at him with his gun. Failing to hit him, the prisoner ran at him and after him, (the deceased fleeing,) until he caught him and stabbed him several times with a knife, and killed him. The only provocation given the prisoner was the admission of the deceased, that he had said, that the prisoner's sons had killed the hog. The only question necessary to consider is, whether that provocation was sufficient to mitigate the homicide to manslaughter?

1. The rule is, that words are not, but blows are, a sufficient provocation to lessen the crime of homicide to manslaughter. State v.Tackett, 1 Hawks 210. State v. Hill, 4 Dev. Bat. 491. State v. Barfield, 8 Ire. 344. State v. Howell, 9 Ire. 485. His Honor held that the provocation did not mitigate the killing to manslaughter. And in this he is sustained by all of the authorities.

2. The prisoner objected that His Honor did not advert to the distinction "between those weapons which are generally used as means of offence, without any positive deadly purpose and those always used with an intent to kill." Whatever force there may be in that distinction, it is not in favor of the prisoner, but is against him; for the weapons which he used were, first a loaded gun which he discharged at the deceased, and secondly, a home-made bowie-knife, such as the soldiers had made when they were going to the war. The peculiar office of both of these weapons is to kill.

3. Again the prisoner objected, that His Honor did not advert to the exception to the rule, that malice is implied from the use of a deadly weapon, "involved in the manner in which the weapon is used and the blow given."

There is nothing in such exception in favor of the prisoner; for themanner of using the gun was, to discharge it at the deceased in carrying distance; and the manner of using the knife was, to strike with all his force, stabbing the deceased repeatedly and one time driving the knife clear through the body.

There is no error in the record to sustain the motion in arrest of judgment.

There is no error. This will be certified c.

PER CURIAM. Judgment affirmed.