Browne, C. J.
Ed C. Raker, indicted for assault with intent to commit murder in the first degree, was convicted of assault with intent to commit murder in the second degree.
In view of the conclusion which we have reached in this case, there is no necessity to discuss the assignments of error relating to the admission of evidence and the charges of the court. ,
It is undisputed that Mose Strickland, the man who was assaulted, together with several others, were trespassing upon the defendant’s land. While so doing Strickland sent Raker’s son with a message to his father, to come down and see him if he was not mad, but “If he is mad tell him not to come.”
Raker rode down on his horse to where the trespassers were, and when within about ten feet of them, dismounted and said, ‘ ‘ By God, Mose, I am come to settle it. ’ ’ Raker testified that as he neared him, Strickland struck him across the head with a stick, and as he staggered towards his horse, Strickland struck him a second lick, and when they got tangled up in a fight, he drew his knife and cut Strickland a deep slash across the back.-
Strickland testifies: “I struck him just as he struck me,” but he admits that he testified under oath at the preliminary hearing: ‘ ‘ There was a stick there and I picked it up and started to hit him and he cut me. ’ ’
L. J. Raker, one of the trespassers, a witness for. the State, gives this version of the beginning of the affray: “When he jumped off his horse and said ‘By God, Mose, [279]*279I have come to settle it, ’ Mose jerked up a little stick and kit him and Ed Cut him.” This Raker is a brother-in-law of Mose Strickland.
J. E. Stokely, another of the trespassers, testified for the State: “As to the question of who hit the first lick, Mose with the stick or Raker with the knifé, I will answer that when I seen Mose hit Mr. Raker he was done in to him. It was all right together. ’ ■
Willie Spears, another trespasser, testified for the State that Raker’s fifteen year old son, whom the testimony showed was a small boy for his age, struck him with a stick, and Spears took it from him, after striking the boy with it, struck Raker when he and Strickland were fighting.
When asked on cross-examination, “Who hit first, Mose with the stick or Raker with the knife,” answered: “Mose with the stick.”
E. L. Pelt, another of the trespassers, testified for the State: “When he rode up he got off his horse and started towards Strickland. Said, ‘By God, Mose, I am here and going to settle this thing this morning. ’ He ran and locked up in a, tussle with Strickland. Strickland hit him with a stick. Raker cut Strickland. Strickland was sitting down when Ed Raker got there. When Raker came up he ran into Strickland and they went to fighting. Ed’s boy picked up a long stick and hit Spears, and it slipped out of his hand, and Spears picked it up and hit Ed’s boy with it. Spears hit Ed Raker with that stick — when Ed cut Strickland. * * - * I didn’t see Raker get his knife out. I seen him when he ran his hand in his pocket. When he ran his hand in his pocket after his knife he was locked up with Strickland. Strickland hit Raker with that little [280]*280stick (indicating stick identified by Strickland). I don’t' know whether he broke the stick or not. It was broken when Raker picked it np to bring home with him that day. At the time I saw Raker run his hand in his pocket, I said ‘look out Mose, he is trying to cut you,’ and he tried to get loose. Strickland had thrown down the stick then. I told him to get loose and he couldn’t, get loose. I think Strickland had thrown down the stick when Raker cut him.”
Revadee Spears, another of the trespassers, testifying for the State, gives this version of the affray: “Ed went around his horse’s head and said: ‘By God, Mose, I have come to settle it.’ Ed came right on and Mose picked up a little stick and hit him with it and about that time Ed hit him.”
N. C. Council, a witness for the State, testified to a conversation with Ed Raker about a week after the difficulty. He says Raker told him that “he rode down there on his horse he rode up and told Mose he was there. Mose repeated .the same back, and then Mose rose up and Struck him with a stick before he got to him,, they locked up, and he pulled his knife and throwed his left arm around him and went to cut him, and he said: one of the boys said ‘Look out Mose, he is going to cut you.’ ” “Ed said that Mose struck him with a stick first, and they ran into each other. Raker said ‘By God, I am here,’ and Mose said he was there and jumped up, struck him with a stick and started in to him; Mose reached behind the cypress and struck him. That was the way Ed told it. Ed hugged up with him. He said he reckoned about the time Buck- Pelt said ‘He is fixing to cut you’ he reckoned Mose pushed back and that caused him to cut it so deep. ’ ’
L. D. Whaley, a witness for the State, testified that on [281]*281the Monday before the difficulty he saw Raker down at his pond looking for his boat, and he heard him say something about Mose Strickland sinking his boat, and that “he was going to kill him. ’ ’ Two other witnesses for the State testified to the same conversation, and contradicted L. W. Whaley’s testimony on this point.
J. H. Whaley’s testimony is as follows: ‘ ‘ He came down there where he was and asked us if we had seen his boat. I told him I had not seen it. He said them boys must have sunk it Saturday morning. He kept talking on. He said he was going to whip Mose, Revadee and Willie if they didn’t stay out of the pond, if he lived. * * * He was going to whip Mose Strickland, Revadee and Willie Spears. He didn’t tell me he was going to kill Mose — just told me he was going to whip him.”
J. W. Vickers, another State witness, testified that he heard Raker say: “ ‘ Them God damned boys must have sunk it. ’ He then said he was going to beat hell out of the two Spears boys and little Mose Strickland and kill that negro. That was on a Monday. It was before the cutting which took place on a Sunday. I don’t know how long before. I don’t remember the date. Raker didn’t say anything about killing Strickland. Said he was going to beat hell out of him, and also the Spears boys because he believed they had sunk his boat that morning. He said he was going to kill that damned nigger. I suppose it was the nigger that worked for Strickland.”
The testimony of J. H. Whaley and J. W. Vickers is more specific than that of L. D. Whaley, and there is nothing in the testimony of either of them, or in the testimony of any other witness that would warrant, the rejection of their testimony and the acceptance of that of L. D. Whaley; and where two wit[282]*282nesses of equal credibility contradict the testimony of another witness, and there is nothing in the testimony of the witnesses itself, nor in the testimony of any other witness discrediting, impeaching or impairing the credibility of their testimony, the acceptance of the testimony of the one, and the rejection of the testimony of the two is arbitrary and not likely to work substantial justice.
Raker gave this version of the difficulty: “I went on down and when I got down, when I rode up there, about the time I got on the ground, he pulled this little sapling stick from behind a cypress. As he pulled it out he pulled me across the head with it. I couldn’t get away from him. I staggered to the horse after he hit me that lick.
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Browne, C. J.
Ed C. Raker, indicted for assault with intent to commit murder in the first degree, was convicted of assault with intent to commit murder in the second degree.
In view of the conclusion which we have reached in this case, there is no necessity to discuss the assignments of error relating to the admission of evidence and the charges of the court. ,
It is undisputed that Mose Strickland, the man who was assaulted, together with several others, were trespassing upon the defendant’s land. While so doing Strickland sent Raker’s son with a message to his father, to come down and see him if he was not mad, but “If he is mad tell him not to come.”
Raker rode down on his horse to where the trespassers were, and when within about ten feet of them, dismounted and said, ‘ ‘ By God, Mose, I am come to settle it. ’ ’ Raker testified that as he neared him, Strickland struck him across the head with a stick, and as he staggered towards his horse, Strickland struck him a second lick, and when they got tangled up in a fight, he drew his knife and cut Strickland a deep slash across the back.-
Strickland testifies: “I struck him just as he struck me,” but he admits that he testified under oath at the preliminary hearing: ‘ ‘ There was a stick there and I picked it up and started to hit him and he cut me. ’ ’
L. J. Raker, one of the trespassers, a witness for. the State, gives this version of the beginning of the affray: “When he jumped off his horse and said ‘By God, Mose, [279]*279I have come to settle it, ’ Mose jerked up a little stick and kit him and Ed Cut him.” This Raker is a brother-in-law of Mose Strickland.
J. E. Stokely, another of the trespassers, testified for the State: “As to the question of who hit the first lick, Mose with the stick or Raker with the knifé, I will answer that when I seen Mose hit Mr. Raker he was done in to him. It was all right together. ’ ■
Willie Spears, another trespasser, testified for the State that Raker’s fifteen year old son, whom the testimony showed was a small boy for his age, struck him with a stick, and Spears took it from him, after striking the boy with it, struck Raker when he and Strickland were fighting.
When asked on cross-examination, “Who hit first, Mose with the stick or Raker with the knife,” answered: “Mose with the stick.”
E. L. Pelt, another of the trespassers, testified for the State: “When he rode up he got off his horse and started towards Strickland. Said, ‘By God, Mose, I am here and going to settle this thing this morning. ’ He ran and locked up in a, tussle with Strickland. Strickland hit him with a stick. Raker cut Strickland. Strickland was sitting down when Ed Raker got there. When Raker came up he ran into Strickland and they went to fighting. Ed’s boy picked up a long stick and hit Spears, and it slipped out of his hand, and Spears picked it up and hit Ed’s boy with it. Spears hit Ed Raker with that stick — when Ed cut Strickland. * * - * I didn’t see Raker get his knife out. I seen him when he ran his hand in his pocket. When he ran his hand in his pocket after his knife he was locked up with Strickland. Strickland hit Raker with that little [280]*280stick (indicating stick identified by Strickland). I don’t' know whether he broke the stick or not. It was broken when Raker picked it np to bring home with him that day. At the time I saw Raker run his hand in his pocket, I said ‘look out Mose, he is trying to cut you,’ and he tried to get loose. Strickland had thrown down the stick then. I told him to get loose and he couldn’t, get loose. I think Strickland had thrown down the stick when Raker cut him.”
Revadee Spears, another of the trespassers, testifying for the State, gives this version of the affray: “Ed went around his horse’s head and said: ‘By God, Mose, I have come to settle it.’ Ed came right on and Mose picked up a little stick and hit him with it and about that time Ed hit him.”
N. C. Council, a witness for the State, testified to a conversation with Ed Raker about a week after the difficulty. He says Raker told him that “he rode down there on his horse he rode up and told Mose he was there. Mose repeated .the same back, and then Mose rose up and Struck him with a stick before he got to him,, they locked up, and he pulled his knife and throwed his left arm around him and went to cut him, and he said: one of the boys said ‘Look out Mose, he is going to cut you.’ ” “Ed said that Mose struck him with a stick first, and they ran into each other. Raker said ‘By God, I am here,’ and Mose said he was there and jumped up, struck him with a stick and started in to him; Mose reached behind the cypress and struck him. That was the way Ed told it. Ed hugged up with him. He said he reckoned about the time Buck- Pelt said ‘He is fixing to cut you’ he reckoned Mose pushed back and that caused him to cut it so deep. ’ ’
L. D. Whaley, a witness for the State, testified that on [281]*281the Monday before the difficulty he saw Raker down at his pond looking for his boat, and he heard him say something about Mose Strickland sinking his boat, and that “he was going to kill him. ’ ’ Two other witnesses for the State testified to the same conversation, and contradicted L. W. Whaley’s testimony on this point.
J. H. Whaley’s testimony is as follows: ‘ ‘ He came down there where he was and asked us if we had seen his boat. I told him I had not seen it. He said them boys must have sunk it Saturday morning. He kept talking on. He said he was going to whip Mose, Revadee and Willie if they didn’t stay out of the pond, if he lived. * * * He was going to whip Mose Strickland, Revadee and Willie Spears. He didn’t tell me he was going to kill Mose — just told me he was going to whip him.”
J. W. Vickers, another State witness, testified that he heard Raker say: “ ‘ Them God damned boys must have sunk it. ’ He then said he was going to beat hell out of the two Spears boys and little Mose Strickland and kill that negro. That was on a Monday. It was before the cutting which took place on a Sunday. I don’t know how long before. I don’t remember the date. Raker didn’t say anything about killing Strickland. Said he was going to beat hell out of him, and also the Spears boys because he believed they had sunk his boat that morning. He said he was going to kill that damned nigger. I suppose it was the nigger that worked for Strickland.”
The testimony of J. H. Whaley and J. W. Vickers is more specific than that of L. D. Whaley, and there is nothing in the testimony of either of them, or in the testimony of any other witness that would warrant, the rejection of their testimony and the acceptance of that of L. D. Whaley; and where two wit[282]*282nesses of equal credibility contradict the testimony of another witness, and there is nothing in the testimony of the witnesses itself, nor in the testimony of any other witness discrediting, impeaching or impairing the credibility of their testimony, the acceptance of the testimony of the one, and the rejection of the testimony of the two is arbitrary and not likely to work substantial justice.
Raker gave this version of the difficulty: “I went on down and when I got down, when I rode up there, about the time I got on the ground, he pulled this little sapling stick from behind a cypress. As he pulled it out he pulled me across the head with it. I couldn’t get away from him. I staggered to the horse after he hit me that lick. He then pulled me another time on the hip and I caught part of it with my arm. The second lick he struck me we got tangled up. I reckon he got up on me, and the best I can tell about it, I locked up with him this way (indicating position). While we was locked up there I might have punched him once or twice with my fists. He must have dropped his stick. He had one hand right back there and one here and was holding me right there (indicating position). I couldn’t knock him loose. I had no thought of cutting him. The first thought I had of getting my knife, I reckon I had it out and was cutting him and the •other boy hit me in the back. I mean the Spears boy as the' one who hit me in the back. I had no quarrel with this man. I reckon about the time I was cutting him, Buck Pelt said ‘look out he is fixing to cut you’ and that he shoved away from me about the time I was cutting him. When he shoved loose from me I didn’t cut him any more. * * * I had no reason or wish to kill Mose Strickland. I was only trying to get-loose from him. * * * I had my knife in my right side pocket, where I generally tote my knife. I did not attempt to draw my knife before. [283]*283I did not do anything like that before I was hit. When I drew it they were hitting me with those sticks., I didn’t know whether they was two, three or five of them. All I figured on was getting loose. He was choking me and some one was beating me in the back. That fight was on rny own property. * * # I did not carry any gun with me, altho I had a pretty good pistol there and also a shot gun there. I didn’t carry it. I left just as I was dressed, slipped on my shoes after going out on the porch. I wouldn’t say positively about the shoes. I did not put any knife in my pocket. It was already there. It was a pocket knife I bought a little while before I killed hogs. That was all on my own land and I didn’t think of no trouble. I happened to say when I got there, ‘By God, I am here ’ because I curse: People know me and know I am pretty bad at it. I wasn’t meaning it as a threat or invitation to fight any body. Mose said in response that, ‘Yes by God I am too’ and with them words, he hit me about the time I got off the horse.”
Stripped of the verbiage of the witnesses, this is what occurred. Several young men were trespassing upon the land of Ed Eaker. Not content with trespassing, Strickland desired that Eaker be advised of the fact, and sent word to him, substantially, that if he was not mad he could come down there, but if he was mad not to come, upon his property where they were trespassing.
Eaker, although he had weapons in his home, took none of them with him except a small pocket knife that he always carried, and was in his pants pocket at the time. On arriving where the trespassers were, he dismounted and said: “By God Mose, I have come to settle.” He had a right to use this language to the trespassers, and he had the further right to use sufficient force to put them off [284]*284his land if they would not go otherwise. As he approached them, Strickland struck him with a stick, they clinched, and engaged in a fight. While this was going on, .Strickland’s fifteen year old son struck one of the trespassers, who took the stick from him and struck Raker who was then engaged in a tussle with. Mose Strickland.
The contention of the State that Raker was the aggressor because he came from his house to where Mose Strickland and the others were trespassing upon his land, after receiving a message from Mose Strickland “not to come there if he was mad,” is untenable. It would be destructive of all rights of property, if trespassers could warn the owner not to come where they were, and that he would be precluded from protecting his property by ejecting them, without becoming the aggressor in an affray in which one of the trespassers assaulted him.
Ed Raker and all the witnesses for the State, except Mose Strickland, say that Strickland struck Raker with the stick before Raker grappled with him, and that the cutting was done while they were clinched. Mose Strickland himself does not say that Raker cut him first, but says they “struck about the same time.”
The jury properly acquitted Raker of the charge of assault with intent to commit murder in the first degree, as there was no evidence that would have warranted such a verdict.
“Murder in the second degree is the unlawful killing of a human being when perpetrated by an act imminently dangerous to another, evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual. ’ ’
There is nothing in the evidence to show that Raker’s [285]*285part in the fight evinced “a depraved mind regardless of human life.” He was assaulted on his own land by trespassers. In the resulting fight, in which his antagonists used sticks, and he used a pen knife, Strickland was badly cut. Had death resulted, it would not have been murder in the first nor in the second degree; and the verdict cannot stand.
The judgment is reversed and a new trial granted.
Taylor and Ellis, J. J., concur.
Whitfield, J., dissents.
West, J., not participating.