The opinion
ClaRK, C. J.,
dissenting: Tbe deceased was chief of police of Earm-ville, and was shot and killed by the prisoner on tbe night of 17 January, 1914, in tbe store of tbe prisoner. Tbe testimony of tbe witnesses for tbe State is that a few minutes before be was shot tbe deceased entered the prisoner’s store and walked down towards tbe middle. Tbe prisoner kept bis eyes on bim and, when be was within 5 or 6 feet, ordered tbe deceased to get out, and shot bim. Several witnesses testified that the prisoner ordered tbe deceased to get out and shot at tbe same time. Others said it was almost immediately after. There was evidence that tbe two men bad bad a quarrel in a barber shop, and that several times during tbe week tbe prisoner bad made statements which amounted to threats against deceased. There was also evidence tending to show motive, that tbe prisoner kept a blind tiger and a gambling room, and tbe prisoner bad said that if tbe deceased came there “searching or rambling over bis business” be would ask bim out, intimating violence if be did not go. There was also evidence that tbe prisoner during tbe same week and just before tbe homicide bad bought a pistol.
*127 Tlie deceased, under tlie solemnity of approaching death, made dying declarations in which he stated that the prisoner ordered him out and shot him instantly, without giving him any opportunity to defend himself or giving him any chance. Immediately after the shooting the two men grappled, and there is evidence that the only pistol in sight was the one the prisoner had used. As the deceased was being taken out of the store, after being shot, he pulled out one of his pistols, which he was entitled to carry as chief of police, and attempted to shoot the prisoner.
Taking the evidence of the prisoner himself (who testified under the most powerful inducement of saving his own life), he told the deceased to get out, and the deceased replying with an insulting- expression, carried his hand to his pocket, and thereupon the prisoner shot him.
It is needless to go into the long-drawn-out evidence and the 129 exceptions that are made. The above is the kernel of the whole case. From the record it appears that the prisoner was defended by eleven able counsel, among them several of State-wide reputation. The trial was presided over by one of the ablest and most impartial judges in this State; the prisoner had the benefit of twelve peremptory challenges against only four allowed to the State, and was convicted by twelve jurors, each of whom answered that he was satisfied beyond a reasonable doubt of the prisoner’s guilt. With these overwhelming advantages in favor of the prisoner, tlie jury found him guilty of manslaughter. It should require more than a mere technical error to cause us to grant a new trial. The sentence of the court to five years in the State’s Prison is not a severe one in view of the evidence.
The point principally relied upon by the defense is the charge of the court that if “the defendant believed the deceased was about to draw his pistol for the purpose of assaulting the defendant with it, and the defendant was willing to enter into a fight with the deceased with a deadly weapon, and immediately drew his pistol. and shot and killed the deceased, the defendant would be guilty of manslaughter.” It is insisted that the judge should have said, “If the prisoner entered into the fight unlawfully and willingly.” But this element appears when the jury was required to find that the prisoner was willing to enter into a fight, with a deadly weapon, and immediately drew his pistol. This amply supplies the word “unlawfully,” for it is not controverted that the prisoner shot before tlie deceased had drawn any weapon.
If the dying declarations of the deceased and the testimony of the State’s witnesses are to be believed, the prisoner ordered the deceased out of his store and immediately shot him, without any provocation; and there is evidence which, if believed, tends to show that this was done for fear that the officer would expose him as a lawbreaker. If the prisoner’s own evidence is to be believed, rejecting that for the State, *128 the prisoner ordered the deceased out of his store, and upon the deceased replying with an insult and moving his hand towards his pocket the prisoner shot at him. If the jury had believed the first state of 'facts, the prisoner should have been convicted of murder. If they believed the last, they would have acquitted him. There remained the third theory, that the prisoner ordered the deceased out of his store,'as he said, and upon receiving an insulting reply, reached for his pistol, for it was not contradicted that hé alone had his pistol out when he fired, and the judge properly told the jury in this connection that if the prisoner fought willingly with a deadly weapon he was guilty of manslaughter. By fighting “willingly” the judge evidently meant if he used his pistol without necessity, for he charged correctly upon the phase of self-defense. If, when the prisoner ordered the deceased out and the deceased replied (if he did) with an insulting expression, the prisoner had struck with his fist, the resulting fight would have been an affray. So if instead of his fist the prisoner used a pistol, and- the deceased had done the same, the death of either would have been manslaughter. Certainly it is none the less so when the prisoner alone used this weapon.
In S. v. Exum, 138 N. C., 618 , Hoke, J., speaking for a unanimous Court, approved the following charge: “If you should find from the evidence that the prisoner willingly engaged in a fight with the deceased, and that the deceased threw his hand to his hip pocket and advanced upon the prisoner in a threatening manner, and that the prisoner, being willing to fight, seized a pistol and shot the deceased, and that the deceased died from the wound (then inflicted by the prisoner), the prisoner would be guilty of manslaughter, provided that you should find from the evidence that the appearance and manner of the deceased was such as to cause the prisoner to believe that the deceased was armed with a deadly weapon and that the prisoner did believe that he was armed with a deadly weapon and.was about to harm him with it,” this Court adding: “This charge is supported by abundant authority. S. v. Ken nedy, 91 N. C., 572 ; S. v. Brittain, 89 N. C., 481 .” This case has been cited frequently since as authority. See citations in the Anno. Ed. It will*be seen at once that if this charge was warranted in the Exum case and was supported by “abundant authority,” as the Court said, and as has been repeatedly approved since, certainly the case is very much stronger against the prisoner here on the evidence of this case, even taking his own statement, and there was no error in the charge of Judge Daniels.
The advantages in favor of a prisoner on trial for homicide are so • overwhelming that a new trial should not be granted in such cases (nor indeed in any case, civil or criminal) unless it can be plainly seen that if there was error it was such error as reasonably caused the result. ■
*129 This trial has been long drawn out and the prisoner’s interests were amply guarded at every point. He has no cause to complain of the verdict or of the punishment.
Under the common-law procedure, before it was amended by statute, the prisoner would not have been allowed the benefit of counsel, nor of summoning witnesses, nor of cross-examining the State’s witnesses. The humanity of the judges in such cases properly allowed the prisoner the benefit of every possible error or technicality. But since the law itself has humanely removed these grievances and put the prisoner not only on a level with the State in these respects, but still gives him enormous advantages — not only requiring a unanimous verdict in which each and every juror must find him guilty beyond a reasonable doubt, but of a great disparity in the number of challenges to the jury, and that errors committed against the State cannot be reviewed on appeal — errors which cannot be seen to have reasonably influenced the result ought not longer to be taken as ground for a new trial. Indeed, the better thought of the age is that unless the verdict is clearly contrary to justice no verdict in any case should be reversed on appeal.
I feel that it is useless to discuss the case more fully. A perusal of the entire testimony would probably satisfy any disinterested person that whatever errors had been assigned or discussed, justice would not suffer, and the public interests for the preservation of human life would be 'served by the refusal to grant a new trial in this case.
The object of a trial of one who has committed homicide is not vengeance, but the protection of the lives of others by the punishment of those who do murder. That this end is not attained can be seen from the very large number of homicides annually committed in this State, as reported by the Attorney-General under the statute, and the very rare cases of conviction. There must be a defect in the administration of justice when this is the case.
On a thorough perusal of the entire evidence, I think the ends of justice require that a new trial should not be granted. ’ In a long trial of this kind, with numerous able counsel,, if the result on appeal is to depend upon the judge running the gauntlet of every conceivable exception, as in this case, it is the judge and not the prisoner who is on trial. It is almost impossible under such circumstances that some technical flaw may not be found. It must be remembered that if the judge commits an error in favor of the prisoner it cannot be reviewed.