Walker, J.,
after stating the case. We do not see why the question proposed to be put to the witness, Peck Lock-lear, was not competent, especially in view of the particular instruction given to the jury in regard to manslaughter, of which crime the defendants were convicted. The guilt of the defendants was by that charge made to depend, at least in some measure upon their purpose in going to the house of the Bartons, for the court told the jury that if John Hall had express malice against the Bartons and went to their house for the purpose of killing them or any one of them, or to do them or any one of them serious bodily harm, or with the purpose of forcibly taking the gun from them at all hazards or without regard to consequences, and if the jury also found that the other defendants knew of this purnose and accompanied John Hall in order to aid and abet him in executing his unlawful design, and if, in furtherance of that design, Rual Barton was asaulted, and in the effort to wrest the gun from him it was discharged and Philip Barton was killed, the defendants, or such of the defendants as knew of this purpose of John Hall and were present aiding and abetting him, would be guilty of manslaughter. It appears most clearly, therefore, that the purpose of the defendants in going to the house of the Bartons was made one of the essential facts of the case to be established by the State, and, evidence having been introduced which tended to prove this fact, the defendants were entitled to be heard in contradiction of it. How could the absence of an unlawful intent or the existence of a lawful one be better shown than by the testimony of one of [1103] the parties charged with having entertained that purpose? Whether the witness should be believed is a question solely for the consideration of the jury. This court has often ruled that when a person is charged with a fraudulent intent it is competent for him to' show by his own testimony that, at the time of the transaction, he had no such intent, and so may any person charged with an unlawful intent in a criminal case be heard by his own testimony in order to disprove or rebut the charge made against him, at least when the intent becomes essential in determining his guilt. We are not informed upon what ground or for what reason the question was objected to by the State. There may have been some good reason for the objection and the ruling, but it does not appear-in the record, by which, of course, we are bound. There is nothing, therefore, to take the ruling out of the general, if not universal, principle that both parties must always be heard, provided they offer competent and relevant testimony.
It was suggested by the Attorney-General that the guilt of the defendants depended not so much upon their purpose in going to the Barton house as upon their acts and conduct after they entered upon the premises, as they were convicted-of manslaughter and not of a higher felony. If the only evidence in the case had been that of the State there might be some force in this suggestion, but it was not by any means all the evidence, as the defendants introduced testimony tending to show that they were walking in the public road, which passed the house of the Bartons, in a peaceful manner and for a lawful purpose, they being at that time on their way to John Archie Locklear’s, and as they were passing the Barton house they were violently set upon by the Bartons, one of whom at least was armed; that the Bartons were the aggressors and the defendants acted strictly in self-defense. But even if the consideration of this part of the case should, as a matter of law, have been confined to what occurred at the [1104] bouse, it does not follow that the excluded question was incompetent, because the court did not in fact so- confine and limit the inquiry, but, on the contrary, made the guilt of the defendants, as we have said, turn in part upon the intent with which they accompanied John Hall to the Barton house. But there is another reason why the evidence should have been admitted. The theory of the State was that the defendants went to the house of the Bartons to attack them and the defendants contended that they had no such purpose, but were on their way to John Archie Locklear’s when they were violently assaulted by the Bartons, and that all they did at the house was strictly in self-defense, and, as we have said, whether 'the contention of the State or that of the defendants was the right one was a matter solely for the jury to find. The defendants were certainly entitled to show, as one of the facts tending to sustain their contention, that they went to the house for a lawful purpose, for, if they went there for an unlawful purpose, as the State insisted they did, it would tend in some degree at least to weaken, if it would not destroy, their plea of self-defense. It was competent also to prove the fact, as some evidence tending to show how the fight started, whether the Bartons or the defendants were the aggressors, or whether or not the defendants entered into the fight willingly. If defendants were on their way to Locklear’s, and, when they reached the house of the Bartons, they were attacked without having done anything to bring on the fight, and they afterwards acted strictly in self-defense, they were entitled to an acquittal. Would not the jury be more apt to conclude that a man with a hostile purpose was the aggressor in a fight than that one with a peaceful purpose was ? The particular error in the ruling was that the court deprived the defendants of an opportunity to show that their purpose was a lawful one and in charging the jury that, in passing upon the guilt of the defendants, they should consider and find [1105] wbat that purpose was, as if it bore directly upon the issue joined between the State and the defendants. The impression made on the jury by the ruling of the court upon the evidence, when considered in connection with the charge, can not well be determined, and the prisoner may have been seriously prejudiced thereby.
The error of the court in excluding this question is sufficient to entitle the defendants to a new trial, but we deem it best, under the facts and circumstances of this case, to make some comment upon the other exceptions, as the same questions thereby presented or at least some of them may be raised at the next trial.
The exception to the ruling of the court in excluding the question put to the witness, Owen McMillan, is not very clearly stated in the record. It appears only that the defendants were not nermitted to prove what was said between Kitty and Nep Barton “as to why the boys were there,” that is, at the house. It is not shown what the witness would have said in answer to the question, but we take it that he would have testified that Kitty and Nep Barton said in that conversation that they were there for some lawful purpose. It is best always and in order to a. perfect understanding of an exception based upon the rejection of evidence, that the particular nature of the evidence to be elicited should clearly appear. If we are correct in our inference as to what the witness would have said, it seems that the question was competent for the purpose of contradicting the witness Nep Barton. It could not have been competent as substantive testimony.
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Walker, J.,
after stating the case. We do not see why the question proposed to be put to the witness, Peck Lock-lear, was not competent, especially in view of the particular instruction given to the jury in regard to manslaughter, of which crime the defendants were convicted. The guilt of the defendants was by that charge made to depend, at least in some measure upon their purpose in going to the house of the Bartons, for the court told the jury that if John Hall had express malice against the Bartons and went to their house for the purpose of killing them or any one of them, or to do them or any one of them serious bodily harm, or with the purpose of forcibly taking the gun from them at all hazards or without regard to consequences, and if the jury also found that the other defendants knew of this purnose and accompanied John Hall in order to aid and abet him in executing his unlawful design, and if, in furtherance of that design, Rual Barton was asaulted, and in the effort to wrest the gun from him it was discharged and Philip Barton was killed, the defendants, or such of the defendants as knew of this purpose of John Hall and were present aiding and abetting him, would be guilty of manslaughter. It appears most clearly, therefore, that the purpose of the defendants in going to the house of the Bartons was made one of the essential facts of the case to be established by the State, and, evidence having been introduced which tended to prove this fact, the defendants were entitled to be heard in contradiction of it. How could the absence of an unlawful intent or the existence of a lawful one be better shown than by the testimony of one of [1103] the parties charged with having entertained that purpose? Whether the witness should be believed is a question solely for the consideration of the jury. This court has often ruled that when a person is charged with a fraudulent intent it is competent for him to' show by his own testimony that, at the time of the transaction, he had no such intent, and so may any person charged with an unlawful intent in a criminal case be heard by his own testimony in order to disprove or rebut the charge made against him, at least when the intent becomes essential in determining his guilt. We are not informed upon what ground or for what reason the question was objected to by the State. There may have been some good reason for the objection and the ruling, but it does not appear-in the record, by which, of course, we are bound. There is nothing, therefore, to take the ruling out of the general, if not universal, principle that both parties must always be heard, provided they offer competent and relevant testimony.
It was suggested by the Attorney-General that the guilt of the defendants depended not so much upon their purpose in going to the Barton house as upon their acts and conduct after they entered upon the premises, as they were convicted-of manslaughter and not of a higher felony. If the only evidence in the case had been that of the State there might be some force in this suggestion, but it was not by any means all the evidence, as the defendants introduced testimony tending to show that they were walking in the public road, which passed the house of the Bartons, in a peaceful manner and for a lawful purpose, they being at that time on their way to John Archie Locklear’s, and as they were passing the Barton house they were violently set upon by the Bartons, one of whom at least was armed; that the Bartons were the aggressors and the defendants acted strictly in self-defense. But even if the consideration of this part of the case should, as a matter of law, have been confined to what occurred at the [1104] bouse, it does not follow that the excluded question was incompetent, because the court did not in fact so- confine and limit the inquiry, but, on the contrary, made the guilt of the defendants, as we have said, turn in part upon the intent with which they accompanied John Hall to the Barton house. But there is another reason why the evidence should have been admitted. The theory of the State was that the defendants went to the house of the Bartons to attack them and the defendants contended that they had no such purpose, but were on their way to John Archie Locklear’s when they were violently assaulted by the Bartons, and that all they did at the house was strictly in self-defense, and, as we have said, whether 'the contention of the State or that of the defendants was the right one was a matter solely for the jury to find. The defendants were certainly entitled to show, as one of the facts tending to sustain their contention, that they went to the house for a lawful purpose, for, if they went there for an unlawful purpose, as the State insisted they did, it would tend in some degree at least to weaken, if it would not destroy, their plea of self-defense. It was competent also to prove the fact, as some evidence tending to show how the fight started, whether the Bartons or the defendants were the aggressors, or whether or not the defendants entered into the fight willingly. If defendants were on their way to Locklear’s, and, when they reached the house of the Bartons, they were attacked without having done anything to bring on the fight, and they afterwards acted strictly in self-defense, they were entitled to an acquittal. Would not the jury be more apt to conclude that a man with a hostile purpose was the aggressor in a fight than that one with a peaceful purpose was ? The particular error in the ruling was that the court deprived the defendants of an opportunity to show that their purpose was a lawful one and in charging the jury that, in passing upon the guilt of the defendants, they should consider and find [1105] wbat that purpose was, as if it bore directly upon the issue joined between the State and the defendants. The impression made on the jury by the ruling of the court upon the evidence, when considered in connection with the charge, can not well be determined, and the prisoner may have been seriously prejudiced thereby.
The error of the court in excluding this question is sufficient to entitle the defendants to a new trial, but we deem it best, under the facts and circumstances of this case, to make some comment upon the other exceptions, as the same questions thereby presented or at least some of them may be raised at the next trial.
The exception to the ruling of the court in excluding the question put to the witness, Owen McMillan, is not very clearly stated in the record. It appears only that the defendants were not nermitted to prove what was said between Kitty and Nep Barton “as to why the boys were there,” that is, at the house. It is not shown what the witness would have said in answer to the question, but we take it that he would have testified that Kitty and Nep Barton said in that conversation that they were there for some lawful purpose. It is best always and in order to a. perfect understanding of an exception based upon the rejection of evidence, that the particular nature of the evidence to be elicited should clearly appear. If we are correct in our inference as to what the witness would have said, it seems that the question was competent for the purpose of contradicting the witness Nep Barton. It could not have been competent as substantive testimony.
We can see no valid objection to the question proposed to be asked the witness, Eual Barton, who testified in behalf of the State. It did not tend perhaps to prove very much in the case, one way or the other, but from the manner in which the exception is stated in the record, we have been able to discover no sufficient reason for excluding the question, as it was some [1106] evidence, tbongb very slight, tending to impair the witness’ credibility. It is competent to prove that a witness’ memory lias been weakened, and it can make no difference whether the impairment of memory is proved by the witness himself or by some one else, or how slight the evidence may be. It would be competent to ask a witness if he recollected all of the facts and circumstances connected with a particular transaction, or whether he had forgotten some of them, and we can perceive no substantial difference between that kind of evidence and that which was proposed to be elicited in this case.
Passing to the next exception, we have said at this term that it is the duty of the court to stop counsel when they discuss matters of which there is no evidence, or which are not proper subjects of comment, but, within the proper limits of debate, counsel should be permitted to discuss any fact of which there is evidence, and which is relevant to the issue. We are of the opinion, therefore, that the discharge of Utley Locklear or the failure of the State to prosecute him, when he had been charged by the Bartons as being one of the guilty parties, and the other fact that the State after a full investigation at the trial of this case had consented to a verdict of not guiltv as to Peck Locklear though he had been similarly accused by the Bartons, were not improper subjects of comment.
The court was clearly right in refusing the defendant’s prayer for instruction. It did not state a correct principle of law, and especially is it erroneous when considered with reference to the facts of the case. If the defendants went to the house of the Bartons for the purpose of recovering the gun “at all hazards,” and to kill if necessary to accomplish their purpose, they were guilty at least of manslaughter. This is the way in which the able and learned judge who presided at the trial submitted the case to the jury in his charge and the instruction we think was clearly right. A case directly in [1107] point is Reg. v. Skeed, 4 F. & F., 931. In the case of Reg. v. Archer, 1 F. & F., 351, it appeared that the defendant pursued the deceased for the purpose of regaining possession of a loaded gun which the deceased had theretofore taken from from the defendant’s house and carried away with him, and during the struggle for the gun between the defendant and deceased, it was discharged and the deceased was killed; the court held that the defendant was guilty of manslaughter. 1 McLain’s Cr., Sec. 347. The same doctrine is laid down in State v. Vines, 93 N. C., 493. It is the unlawful purpose, in the prosecution of which the homicide is committed, tha makes the killing manslaughter.
The defendant’s exception to the charge of the court can not be sustained. We have examined the charge very carefully and can find no error in it, but if there had been error it should have been specifically pointed out, and the defendants will not be allowed to take advantage of it by a general objection to the entire charge, or to any part of the charge,, which contains several distinct propositions, some of which are correct, or at least correct as to one or more of the defendants, although one or more of the principles laid down may be erroneous.
There must be a new trial because of the errors committed by the court in the respects pointed out.
New Trial.