Hawkins vs. The State.

Defendant's counsel moved for a new trial, on the ground of error in the rulings and charge above excepted to. This motion the Court refused, and the defendant's counsel filed his bill of exceptions, assigning the same as error.

WALKER & FRANCIS, for plaintiff in error.

Sol. Gen. LONGSTREET, for the State.

By the Court.-LUMPKIN J. delivering the opinion.

It seems in this case, that prisoner and deceased were gambling in a crib; a quarrel and fight took place; Hawkins came out and threw stones or brick-bats at Scott, and punched him through the cracks of the crib. The last stone thrown was supposed to have hit Scott, as he did not speak afterwards. Hawkins then left for his house, saying he would be back in a little while; Scott came out, and was standing with the witness Baldwin, when Hawkins returned with two horseman's pistols in his hands, loaded with buck shot; when he got within 23 or 24 steps of Scott, Scott remarked that Hawkins was too mean to live, and that he intended to kill him; witness does not know whether Hawkins heard this remark, but thinks he might have heard it; Hawkins fired and killed Scott, eight of the shot taking effect; and upon this testimony he was found guilty of murder by the jury.

A new trial was moved for on two grounds. First, because the Court refused to allow defendant's counsel to ask the witnesses, who were present at the killing, whether, from the conduct, countenance and language of the deceased, immediately preceding the homicide, they believed deceased intended to kill the accused. Second, because the Court charged the jury, that if they should find, that between the provocation given and the killing, there was sufficient time for the

VOL. XXV.-14

Hawkins vs. The State.

voice of humanity to have been heard, and reason to have resumed her sway, whether in this case the fact was so or not, the killing was murder, and not manslaughter.

The application was refused, and to reverse this judgment this writ of error is prosecuted.

[1.] Was the Court right in refusing to allow the witnesses to testify as to their belief, as to what was the purpose and intention of Scott?

In Hudgins vs. The State, 2 Kelly's Rep. 173, this Court held, that the opinion of a witness, as to the intention of the deceased in approaching the slayer, is not admissible. The same rule is laid down in the case of The State vs. Scott, 4 Iredell's Law Rep. 409. The Court say, "the belief that a person designs to kill me, will not prevent my killing him from being murder, unless he is making some attempt to execute his design; or at least, is in an apparent situation to do so; and thereby reasonably induces me to think that he intends to do it immediately."

Here, there was certainly no such purpose in the mind of the deceased, as he had no weapon of any sort. Prisoner must have known that Scott was unarmed. The witnesses were not asked, if they thought that Scott intended to kill Hawkins, at the time of the homicide? To such a question there could have been but one answer.

[2.] As to the charge of the Court, it was in the terms and language of the code. See 4 Division, Section 7, Cobb's Digest, 783-4. Provocation by threats will not be sufficient to free the slayer from the guilt of murder. And if sufficient time has elapsed for reason to resume her sway, the killing shall be attributed to deliberate revenge, and punished as murder. Here, the menaces were evidently made after Hawkins had determined to kill Scott, for they were made after he returned from his house with deadly weapons; and it was very doubtful whether the words of Scott were heard at all by Hawkins. They were addressed to the witness, and

Hawkins vs. The State.

not to Hawkins. See Russell on Crimes, 433, 442, and the authorities there cited; Wharton's American Crim. Law, 375, 377; Roscoe's Crim. Ev. 724, 729, 730, 731.

But what provocation was given in this case, to justify the uncontrollable passion, relied on in this case, in mitigation of this homicide? Hawkins seemed to have got the best of the fight in the crib; he continued to assault Scott after he came out; he left him in the crib, hastened home, a distance of 250 yards, procured his pistols, returns and executes his murderous purpose, evidently formed before he left Scott. It will never do to tolerate such a plea, I had almost said, pretense; no, never. Ray vs. The State, 15 Ga. Rep. 244, 215.

Human life is sacrificed at this day, throughout the land, with more indifference, than the life of a dog, especially if it be a good dog. Scott may not have been a good citizen, still he was a human creature, under the protection of the laws of the State; and even in his person, the punitory power of the government must be vindicated. Cain was the first murderer, but who is the last, is known only to those who have read the morning papers. If this crime goes unpunished, let our skirts, at least, be free from the stain of blood-guiltiness.

Judgment affirmed.

NOTE. This opinion was delivered at the opening of the Court in the morning. At noon, Judge L. picked up the Augusta Chronicle & Sentinel of that day, and the fol lowing was the first article which arrested his attention:

"FATAL ACCIDENT.-The West Point Citizen of Saturday says:-We learn that a Mr. Brawner, a teacher by occupation, was fatally stabbed on last Monday evening, by one of his students only twelve years old. The circumstances connected with this case are as follows: While the boys were at play, during recess, Mr. Brawner heard the little boy making use of profane language; he addressed the boy, William Collins, and asked him what he said. The lad repeated the oath; whereupon, the teacher said to him, 'William, come into the house, and I will settle with you.' The lad walked to the school room, and while on the way, report says that a larger boy said to William, if he attempts to whip you, stick your knife in him.' Mr. Brawner struck him once or twice with a switch; William returned the blow, and made his escape by running off. Mr. B. ran after him some distance, and on his return was observed to fall several times. He died from a stab received in the left breast, before reaching the school house.

Hopkins vs. Tilman.

"We learn that Mr. Brawner was raised near Elberton, Elbert county, Georgia He was an estimable young man, beloved by all who knew him, and was a particular favorite with William's parents, as he had been chief attendant at a wedding party only four days previous to his death, at the marriage nuptials of William's sister. This said accident occurred near Berlin, Chambers county, Alabama."

WILLIAM HOPKINS, plaintiff in error, vs. LAZARUS TILMAN, defendant in error.

When the question is one of fact purely-the soundness or unsoundness of the property at the time of sale-and the case has been fairly submitted to the jury, their verdict will not be disturbed.

Action for breach of warranty, from Merriwether county, ried before Judge BULL, at August Term, 1858.

This was an action by William Hopkins against Lazarus Tilman, to recover damages for breach of the warranty of soundness of a negro woman slave, sold by Tilman to plaintiff.

The defendant pleaded the general issue.

The plaintiff offered and read in evidence the bill of sale, which was as follows:

"Received, December 31st, 1853, of William Hopkins six hundred and fifty dollars in full payment for a negro woman named Catharine about seventeen years old, the title to which negro I bind myself, my heirs and executors, and warrant to be sound except being deaf and a small old hurt on the hand. I warrant to be sound in body and mind.

(Signed,)

LAZARUS TILMAN.

Walton Ector, For the plaintiff, testified that he knew the girl when about 13 years old; she was sold as the property of M. D. Ector, considered the girl an inferior negro but healthy, she was a dull negro.

Hopkins vs. Tilman.

Dr. Joseph T. Reese, examined by commission, testified, that he practiced medicine in the family of defendant, and was called to see a negro girl named Catharine, did not think she was afflicted with any disease when he saw her, was called to see her in the Spring or Summer of 1853 or 1854, as well as remembered; thought the girl was practicing a deception on the family of defendant and treated her accordingly. was the only time he ever saw her; has no idea of her worth. She was lying quietly on the bed in a natural position and condition as far as witness could judge.

It

Dr. E. C. Hood, testified, that he was a physcian, and in the spring of 1854, was called to see the woman and found her in a stupid, comatose condition, with laborious respiration; pupils of the eye dilated; after watching her symptoms about an hour and using means to restore her to consciousness, she became rational or partially so, and he gave her a cathartic and left her. Judging from the symptoms and the history of the case had little or no doubt but that the negro had had a fit? Does not know whether the case is of long or short standing. Cross examined.-The causes of fits are very numerous, and the cause is frequently so obscure that we cannot detect it; is not prepared to say as to the curability or durability of this case; has seen the negro only a few times.

Milton and Zimmerman Hopkins, examined by commission, for plaintiff (to 1st set of interrogatories) say they know the woman Catharine bought by plaintiff of defendant. She was not in good health at the time of purchase, did not understand the nature of her disease at that time. She had her first fit, after we knew her, about the last of February 1854, since that time she has had four other fits, she also has spells of sickness once a month.

Cross examined.-Are not physicians; the disease remains about the same as it was when they first knew her; do not consider the girl worth the money that plaintiff paid for her.