TWO IN PURSUIT OF AN UNLAWFUL ACT.-Where two persons are engaged in the pursuit of an unlawful act, and, in pursuit of that common purpose, one of them takes life under such circumstances as makes it murder in him, the other is guilty of murder also. Gooch, 94-987.

If two persons seek another, and under pretense of a fight, conspire to stab and kill him, it is murder, no matter what the provocation may be after the fight commenced. Ib.

VIOLENCE OUT OF PROPORTION TO PROVOCATION.-If in a fight, one party uses excessive violence out of all proportion to the provocation, and kills the other, it is murder, although he had no intention to take life when the fight began. Gooch, 94-987.

ARMING WITH INTENT TO KILL.-Where the prisoner formed a particular and definite purpose to kill, and in pursuance of that purpose, armed himself, sought the deceased and killed him, he is guilty of murder, no matter what provocation was given or how high his passions were aroused during the fight. Pankey, 104-840.

BURDEN ON Defendant WHEN KILLING PROVEN.-Where the killing is admitted or proven, it is incumbent on defendant to satisfy the jury that the offense is manslaughter, or they must convict of murder. Thomas, 98

599.

ACTING COOLLY AND WITH VIOLENCE.-The degree of homicide is murder where the prisoner acts cooly and revengefully or with violence out of all proportion to the provocation, and this whether there be "cooling-time" or not; therefore, where, in an altercation about the payment of an alleged debt, the deceased promising to pay when he got the change, the prisoner threatening to whip him if he did not do so then and there, deceased, unarmed, remonstrated with the prisoner and expressed friendship for him; a fight ensued in which deceased was knocked down; they were separated and deceased went off; prisoner at the request of a witness put up his pistol which had been drawn, promising to do no more, but followed and overtook deceased and engaged in another fight, deceased crying out "hold him off me," and killed deceased with a deadly weapon, it was held that the prisoner was guilty of murder. Boon, 82-637.

KILLING FROM MALICE THOUGH MEETING BY CHANCE.-If A, from previous angry feeling, on a meeting with B, strikes him with a whip with the view of inducing B to draw a pistol, or believing he will do so in resentment of the insult, and determines if he does so to shoot B as soon as he draws, and B does draw, and A immediately shoots and kills B, this is murder. Martin, 24 (2 Ired.), 101.

DECEASED PRESSING FOR FIGHT AFTER BEING THREATENED. The deceased had threatened to kill the prisoner about three weeks before the homicide, and this threat had been communicated to the prisoner. They met in the street on a star-light night when they could see each other; the deceased pressed for a fight, and the prisoner retreated for a short distance, the deceased overtook him when the prisoner stabbed and killed him, the deceased having no deadly weapon at the time: Held, that the prisoner was guilty of murder. Daniel, J., dissenting. Scott, 26 (4 Ired.), 409.

KILLING WITH EXPRESS MALICE THOUGH UNDER PROVOCATION.-If one seek another and enter into a fight with him with the purpose, under the pretense of fighting, to kill him, if a homicide ensues, the assailant is guilty of murder, no matter what provocation was apparently then given, or how high his assailant's passion rose during the combat, for the malice is express. Lane, 26 (4 Ired.), 113.

DECEASED STRIKING FIRST.-After a quarrel deceased started to leave, and had gone about fifty yards, but being pursued and overtaken by the prisoner, who came with a knife in his hand and with his arm uplifted, he turned and struck the prisoner the first blow, and was immediately stabbed by the pris

oner and killed: Held, that the deceased was justified in anticipating the premeditated assault, and that the prisoner was guilty of murder. Howell, 31, (9 Ired.), 485.

FIGHTING UNDER UNFAIR ADVANTAGE. When persons fight on fair terms, and after an interval, blows having been given, a party draws, in the heat of blood, a deadly instrument and inflicts a deadly injury, it is manslaughter only; but if a party enters a contest dangerously armed, and fights under an unfair advantage, though mutual blows pass, it is not manslaughter, but murder. Hildreth, 31 (9 Ired.), 429.

KILLING BYSTANDER ASSISTING OFFICER TO ARREST.-Where an officer calls on a bystander to assist in disarming a prisoner whom he has arrested, and the prisoner, on the bystander's taking hold of him, draws a pistol and kills the bystander, it is murder. McMahan, 103–379.

KILLING TO PREVENT TRESPASS.-If a person deliberately kill another to prevent a mere trespass to property, he is guilty of murder. Brandon, 53 (8 Jones), 463.

NURSE GIVING CHILD LAUDANUM.-A nurse who gives a child laudanum enough to kill it, knowing that laudanum was poison and likely to kill, nothing else appearing, is guilty of murder. Leak, 61 (Phil. Law), 450.

DEMANDING SATISFACTION FOR INSULT.-One who pursues another, armed with a gun, for the purpose of demanding satisfaction for an insult received, and to kill him or do him some great bodily harm should the demand for satisfaction be refused, is guilty of murder if he kills, though deceased came back to meet him on his approach, and put his hand to his side as if to draw a pistol. Owen, 61 (Phil. Law), 425.

ONE KILLING IN FURTHERANCE OF COMMON PURPOSE.-Where two persons form the purpose of wrongfully assailing another, and one of them, in furtherance of such common purpose, slays him with a deadly weapon and without provocation, they are both guilty of murder. Simmons, 51 (6 Jones), 21.

FIGHTING ON SUDDEN QUARREL BUT ON UNEQUAL TERMS.-If two men fight on a sudden quarrel with deadly weapons, and one strikes the other a mortal blow before the person so stricken is prepared to use his weapon, the killing is murder; and so it is if any unfair advantage be taken; and if one uses a stick and the other a knife or pistol, they do not fight fairly and on equal terms, and the party killing is guilty of murder. Ellick, 61, (Wins. Law), 56. ADULTERY OF PRISONER'S WIFE WITH DECEASED. The prisoner, who suspected his wife of unfaithfulness, followed her stealthily as she was going to a neighbor's, and having come up with her as she was talking with a man with whom she had previously been on terms of criminal intimacy, she ran away, and he fell upon the man with a stone and a knife and killed him: Held, to be murder. Avery, 64-608.

SEEKING DECEASED FOR A FIGHT WITH INTENT TO KILL.-Where the prisoner seeks the deceased for the purpose of fighting with him, intending to kill him if he resists, and a fight ensues, and the prisoner slays the deceased, it is murder, although deceased puts the prisoner in great danger of his life during the fight. Hensley, 94-1021.

DECEASED ASSAULTING PRISONER'S WIFE WITH INTENT TO RAPE.-In a case of homicide, in order to entitle the accused to the benefit of the rule reducing a killing to manslaughter on account of an assault upon his wife with intent to commit a rape, or for adultery, it must appear that he detected the act in its progress and slew the wrongdoer on the spot; to slay one after such wrong has transpired, upon subsequent information of the fact is murder. Neville, 51 (6 Jones), 423.

HOMICIDE-PARENT AND CHILD.-Although the law allows to a person in loco parentis the broadest latitude in governing, it is not necessary to prove

express malice on his part in order to convict of murder, if the facts show such cruelty and inhumanity in whipping as excludes the idea of passion. Harris, 63-1.

It is, ordinarily, true that an actual intent to kill is involved in the idea of murder, but it is not always so. If great bodily harm be intended, and that can be gathered from the nature of the means used, or other circumstances, and death ensues, the party will be guilty of murder, although he may not have intended death. Hoover, 20 (4 D. & B.), 365.

WHEN THE COURT MAY CHARGE MURDER IF THE EVIDENCE IS BELIEVED.— When there is not one single circumstance in the immediate transaction to justify, excuse or mitigate the homicide, it is not error to instruct the jury that malice is implied and that the offense is murder, although there may be circumstances more remote which tend to mitigage the homicide, as where the prisoner and deceased were on friendly terms before the transaction, or where the prisoner manifests sorrow immediately afterwards, or has an opportunity to escape and does not do it. But where the immediate circumstances of the killing are such as to make it of doubtful character, then it is proper to look to circumstances further off to enable us to solve the doubt. Elwood, 73-189.

Though the law may raise a presumption from a given state of facts, nothing more appearing, it is the province of the court, when all the facts are developed, to tell the jury whether, in every aspect of the testimony, such presumption is rebutted. Miller, 112-878.

Where there is not even a scintilla of evidence of self-defense there is no error in instructing the jury that there is no evidence tending to show that the killing was done in self-defense. Byrd, 121-684.

An indictment of a husband for causing the death of his wife by beating her and then forcing her out and compelling her to remain out all night, is not sustained by proof that, after he had beaten her, and after he had gone to bed, she voluntarily left the house and unnecessarily remained out in the open air. Preslar, 48-421.

16. INTOXICATION.

A request for a special instruction that if the prisoner was actually intoxicated when the act was committed he would not be guilty of murder in the first degree was properly refused, since such request leaves out of view the consideration whether the prisoner had made himself drunk for the purpose of executing a premeditated intent to kill, or whether he availed himself of a drunken condition to execute a premeditated resolution to do the act. Kale, 124-816.

If one possessed of capacity sufficient to distinguish right from wrong is so mentally or physically constituted by nature, or became so by reason of some accident or affliction, that by the use of intoxicating liquors he loses his reason and becomes furious, and knowing this, he voluntarily becomes drunk, and, while under the temporary dethronement of reason, kills another without justification, he is guilty of murder. Wilson, 104-868.

DELIRIUM TREMENS AND DIPSOMANIA.-Delirium tremens is recognized as a species of insanity, but "dipsomania" and "moral insanity" are not recognized as defenses. Potts, 100-457.

Voluntary drunkenness is no excuse for the commission of crime. Keath, 83-626.

Drunkenness at the time the act is committed, nothing else appearing, does not repel malice nor lower the grade of the crime. Kale, 124-816.

If one charged with murder has premeditated and deliberately formed the intention to kill, and did kill, when drunk, the offense is not reduced to the second degree on account of the drunkenness. Kale, 124–816.

When drunkenness is relied on to reduce the grade from murder in the first to a lower degree, the killing and its manner, the intent, intoxication, how it came about, and for what purpose the drunkenness took place, and the like, are questions for the jury, under proper instructions. Kale, 124.

Though defendant was intoxicated at the time of the killing, yet if he had mind sufficient to plan and form a design to kill, and to deliberate and premeditate upon the killing in consequence of the formed design, the fact of intoxication will not justify defendant. McDaniel, 115-807.

17. INDICTMENT.

Sec. 436 (3245). For homicide.

In indictments for murder and manslaughter, it shall not be necessary to allege matter not required to be proved on the trial; but in the body of the indictment, after naming the person accused, and the county of his residence, the date of the offense, the averment "with force and arms," and the county of the alleged commission of the offense, as is now usual, it shall be sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder (naming the person killed), and concluding as is now required by law; and it shall be sufficient in describing manslaughter to allege that the accused feloniously and willfully, did kill and slay (naming the person killed), and concluding as aforesaid; and any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for murder or manslaughter, as the case may be.

1887, c. 58.

INDICTMENT UNDER ACT OF 1887.-An indictment for murder in the following words is sufficient: "The jurors for the state on their oaths present that A B, in the county of E, did feloniously, and of malice aforethought, kill and murder C D." Arnold, 107-861.

An indictment for murder in the following form is sufficient: "The jurors for the state upon their oaths present that E M, late of G county, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the seventh day of October in the year of our Lord one thousand eight hundred and eighty-eight, with force and arms at and in said county feloniously, willfully and of his malice aforethought, did kill and murder L H, contrary to the form," &c. Moore, 104-743.

INDICTMENT PRIOR TO ACT OF 1887.-The use of the word "blow" for "wound" in an indictment charging the killing with a club, with which the prisoner struck deceased “in and upon the left side of the head, cutting the left ear and mashing the nose and left cheek bone," of which "mortal blow" it is alleged the deceased instantly died, is no ground for arresting the judgment, since the other words used show that a wound was given and what kind of a wound it was. Nash, C. J., dissenting. Noblett, 47 (2 Jones), 418.

An indictment for murder by poison need not necessarily contain an averment that the prisoner knew of its noxious properties, though such averment is proper and always safer. Slagle, 83-630.

An indictment charging that the prisoners "did make an assault and in some way and manner, and by some means, instruments and weapons, to the jurors unknown, did then and there feloniously, willfully, and of their malice aforethought deprive him, the said A of his life, so that the said A did then and there instantly die," is sufficient, though the evidence presents different ways and means by which the deceased might have been killed. Parker, 65— 453.

An indictment for murder by a blow or stroke must allege the infliction of a mortal wound, and it is not sufficient to charge the infliction of a "wound which produces instant death." Morgan, 85-581.

The indictment is sufficient if it charge that the homicide was committed "in some way and manner and by some means, instruments and weapons, to the jury unknown." Williams, 52 (7 Jones), 446.

A description of an instrument by which a mortal blow was given as "a certain wooden stick of no value, is sufficient without giving its length and thickness so as to show it was a deadly weapon. Smith, 61 (Phil. Law), 340.

A defect in the indictment caused by spelling the day of the month on which the homicide was alleged to have been committed as the "tweflth" day of August instead of the "twelfth" day, is cured by Code N. C., sec. 1189. Shepherd, 30 (8 Ired.), 195.

An indictment which sets forth the time of the commission of the offense as "on the third day of August, eighteen hundred and forty-three," without using the words "the year of our Lord," or even using the word "year," is sufficient. The defect is cured by Code N. C., sec 1189. Lane, 26 (4 Ired), 113.

Where the name of the county is in the margin in the body of the bill, the omission of North Carolina in the indictment is no ground for arresting the judgment, since the trial judge must know that he is holding a court in that county of the state for the state. Lane, 26 (4 Ired.), 113.

Where the assault is alleged to have been committed in a county in this state, and the death to have occurred in another state, the indictment need not conclude against the form of the statute. Dunkley, 25 (3 Ired.), 116.

An indictment which does not show that the death happened within a year and a day after the wound was given is defective. Orrell, 14 (3 Dev.), 139.

An allegation that the deceased of the said mortal wound "did languish and then and there did die," is a sufficient averment of the time of the death, and that it occurred within a year and a day. Haney, 67-467.

It is not necesasry to allege that the killing was willfully done. Arnold, 107-861.

Where the record shows an indictment for murder in the form prescribed by Revisal, 3245 (which does not set out the means used), and a verdict thereon of murder in the second degree, as authorized by the statute, there is no ground in the record on which to base the prisoner's motion to arrest the judg ment. Matthews, 142-621.

18. SELF-DEFENSE-GREAT BODILY HARM.

While the assailant remains in the conflict, to whatever extremity he may be reduced, he can not be excused for taking the life of his antagonist to save his own. In such case it may be rightfully and truthfully said that he brought the necessity upon himself by his own criminal conduct. Medlen,

126-1127.

When the prisoner asked the deceased, who was drinking and noisy, to leave his sister's house, as she was sick, and deceased threatened to shoot any one who put his foot out of the door, and when the prisoner, unarmed, went