FROM IREDELL. His Honor informed the jury that malice aforethough [aforethought] was an indispensable ingredient to the crime of murder; that it meant a (270) wicked, depraved and diabolical temper, moving the party either deliberately to kill his fellow, or to kill without a legal provocation. That in cases where the prisoner had a right to use force, as in that of a parent correcting his child, the exact degree of force necessary to attain the object in view was not measured with golden scales, but that the like reason did not apply to the present case, as the prisoner had no right to use any degree of force. That if they believed the prisoner was moved to perpetrate the homicide by the provoking language of the deceased he was guilty of murder.

The prisoner was found guilty of murder, and judgment of death being awarded, he appealed to this Court. It cannot well be denied that the circumstances attending the homicide set forth in this record, legally speaking, constitute a case of murder; and if so, it is contended with much strength of argument that the testimony offered in relation to the prisoner's violent temper ought not to influence the decision of the case, because if it had been proved that he possessed a mild and peaceable disposition it would still be a case of murder. I am not disposed to controvert this proposition. But in the consideration of this case it must be kept in view that by the Constitution of the State it is declared that no freeman shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men, delivered in open Court.

Now if it could be reduced to a moral certainty that juries could and would at all times, in the discharge of their duties, strictly adhere to the law which defines murder the reasoning would be unanswerable. But, from the nature of things, this is not to be expected. It is the nature of man to lean in favor of an unfortunate criminal when he is *Page 173 surrounded with a good character. Our feelings are too often indulged at the expense of the understanding, whether friendship or hatred be the food they feed upon. It is, therefore, of much importance that the rules of evidence should be strictly adhered to — one of which is that evidence of the prisoner's general character shall not, against his consent, and at the instance of the prosecutor, be given in evidence against him unless the nature of the charge renders it necessary. This, however, is not that case.

I am pretty well persuaded that it was not the object of the Judge to impugn this rule. The question, which I think a departure from it, was put upon the heels of one which was asked by the prisoner's counsel, which was intended to establish the fact that the prisoner, on account of weakness of mind, was not altogether an accountable being. The question asked respecting the violence of his temper related more to the qualities of the heart and the nature of disposition. I am (278) of opinion that the prisoner's counsel, by asking that question, did not put the defendant's character in issue. The question that followed did so, to a certain extent. It brought forth the answer that he was a man of violent temper. This might have had an effect with the jury unfavorable to the prisoner. It may seem to be a small circumstance for which to grant a new trial, but it possibly may be one on which the prisoner's life depends. The rules of evidence in favor of life cannot be too closely adhered to. I am of opinion that a new trial should be awarded.

HENDERSON, C. J., concurred.

*277Hall, Judge.

it cannot well be denied, that the circumstances attending the homicide set forth in this re- ** cord, legally speaking, constitute a case of murder; and if so, it is contended with much strength of argument, that the testimony offered in relation to the Prisoner's violent temper, ought not to influence the decision of the case, because if it had been proved- that he possessed a mild and peaceable disposition, it would still be a case of murder, f am not disposed to controvert this proposition. But in the consideration of this case, it must be kept in view, that by tiie constitution of the State, it is declared that no freeman shall be convicted of any crime but by the unanimous verdict of a Jury of good and lawful men, delivered in open Court.

Now if it could be reduced to a moral certainly, that Juries could and would at all times, in the discharge of their duties, strictly adhere to the law which defines murder, the reasoning would be unanswerable. But from the nature of things, this is not to be expected, it is the nature of man to lean in favour of an unfortunate criminal, when he is surrounded with a good character. Our feelings are too often indulged at (he expense of the understanding, whether friendship or hatred be tbe food they feed upon. It is therefore of much importance that the rules of evidence should be strictly adhered to ; one of which is, that evidence of the Prisoner’s general character shall not, against his consent, and at the instance of the prosecutor, be given in evidence against him, unless the nature of the charge renders it necessary. This however is not that case.

I am pretty well persuaded, that it was not the object of the Judge to. impugn this rule. The question, which I think a departure from it, was put upon the heels of one which was asked by the Prisoner’s Counsel, which was intended to establish the fact, that the Prisoner on account of weakness of mind, was not altogether an accountable being. The question asked respecting the *278violence of his temper, related more to the qualities of ^ll’^e!U,t, ant* nature of disposition. I am of opinion* that the Prisoner’s Counsel, by asking that question, did no(: p„j (|,e Defendant’s character in issue. The question that followed did so, to a certain extent. It brought forth the answer, that he was a man of violent temper. This might have had an effect with the Jury unfavorable to the Prisoner, it may seem to be a small circumstance for which to grant a new trial, but it possibly maybe one on which the prisoner’s life depends. The rules of evidence in favor of life, cannot be too closely adhered, to. I am of opinion that a new trial should be awarded.

Henderson, Chief-Justice, concurred! Ruffin, Judge, dissentiente.

I have endeavored to overcome my own impressions in this case, and accede to the majority of the Court; but I have been unable. I will take for granted, that the evidence of temper ought not to have been received, and yet I think the judgment of the Superior Court right. If evidence, incompetent merely by reason of its irrelevancy, be received, I do not see that the verdict ought to be nullified. If improper evidence is seen by the Court to have had its effect, or is such that it could by possibility have prejudiced the party against whom it is given, a Court of Errors is bound to grant a new trial } because it cannot be known upon what the Jury proceeded. But here the evidence must have been altogether inoperative. If it had improperly proved a fact necessary to the Prisoner’s conviction, or went to sustain the credit of a witness for the State, or to impair the credit of a witness for the Prisoner, or the like, then the verdict ought not to stand.' But the record states a case, in which it is apparent that it could not in reason have had any such effect. It went to the Prisoner’s character and temper. If with a good character or good temper, he would have been better ofij then I would agree that he ought to have a new trial. *279But here the Jury had nothing to do with the character or temper, or the actual disposition with winch the act was done. The law determined that from the circumstances, if the Jury found those circumstances to exist. It is a case of malice implied by the law. If the best disposed, and most pacific man on earth, without provocation, (and words are not provocation,) assaults another with an instrument likely to produce death, and death ensues, he is guilty of murder. The law infers the malice from the fact. It must he so — else there is no rule; and ail is left to the discretion of the Jury. The law infers it, because every iban óf well regulated ,mind is obliged to say, that in every such case, the slayer is a man of dark, malignant heart, of ungovernable passions, regardless of social duty, and bent on spilling human blood. In a case of express malice, or of provocation, the question is for the Jury. They are' to determine whether the accused acted on the provocation on the sudden, or had the particular ill-will. But where there lias been no provocation, or none shown, the only question for the jury is the credit of the witnesses — the perpetration of the fact. It is not put to them, whether the ac-' cused did the act by deliberation and with calm intent, or in a sudden gust of passion. For whether it be the one or the other, in such a case it is murder. For passion is no excuse, unless by reason of ordinary human frailty it was justly excited. Where there has been a killing without a legal provocation, and by means of an instrument fitted for that end, whether the passions were roused or not is immaterial. They ought not to have been. There was nothing which ought to have provoked a sudden transport of anger, and dethroned reason. If the anger did in fact exist, and was of a sudden, yet without reasonable cause, and under the impulse of it, the party killed another, his guilt is not mitigated. Such a rage though ever so sudden, if to he appeased only by taking life, is a brutal ferocity, and the very stale of his *280passions aggravates his guilt. He is too dangerous to live. The safety of his fellow-men requires that he should be cut off from among them. Henee the Jury couj¿ n()t |ja,e been misled in the case before us. The Judge was bound <t:o tell them, that the Prisoner was guilty of murder, if they believed the witnesses. I am not questioning the ri|ht of the Jury to pass on the law of the case, that is, their power. But the Court has a right, and was bound to instruct them on it; and they might follow or not, as they pleased. They have done so here, and Í am not for, disturbing their verdict. For although they may decide. the law, if they choose, that is not to prevent the Court from expounding the law to them. And they were not misled as to the law in this case by the admission of the ovidenre. For in law, the guilt of the Prisoner stands precisely the same, were that evidence struck out of the case, or if his good temper had been proved by a thousand uncoutradicfed witnesses. Indeed, my brethren, I am happy to say, find no fault with the charge of the. Judge; so that the rules of the law respecting homicide are not intended to be altered. We differ only as to the consequence of the admission of the evidence. A Court is not bound to hear irrelevant testimony, but if by a slip it gets in, and cannot by possibility have, in reason or in law, an influence on the trial, I think it ought not to affect the judgment* And X must say, that it cannot have influenced the trial, where in law, the offence is the same, with or without the evidence. It cannot then have done harm.

Per Curiam. — Let the judgment of the Court below be reversed, and a new trial awarded.

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