State v. Pennell , 232 N.C. 573 ( 1950 )

61 S.E.2d 593 (1950) 232 N.C. 573

STATE
v.
PENNELL.

No. 289.

Supreme Court of North Carolina.

November 1, 1950.

Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.

G. W. Klutz and Hal B. Adams, Lenoir, for defendant.

STACY, Chief Justice.

The pivotal question for decision is whether the defendant's special prayer for instruction called for substantial compliance; and, if so, whether the charge as given suffices for the purpose.

Practically the same question was involved on the former appeal, only in a little different form. The defendant presently complains at the failure of the court to give an instruction, seasonably proffered, touching his right of self-defense. It was given in substance, though not in the precise language of the prayer.

It is well understood that when a defendant in a criminal prosecution duly makes request for a special instruction, which is correct in itself and supported by evidence, the trial court, while not required to adopt the precise language of the prayer, is in duty bound to give the instruction, in substance at lease, and, unless this is done, either in direct response to the request or otherwise in some portion of the charge, the failure may be preserved for valid exception on appeal. Groome v. City of Statesville, 207 N.C. 538, 177 S.E. 638; State v. Henderson, 206 N.C. 830, 175 S.E. 201; State v. Lee, 196 N.C. 714, 146 S.E. 858.

In apt time, the defendant asked the court to instruct the jury that the principle of self-defense "gives the defendant the right to use a deadly weapon, such as a rifle, if it appear to him reasonably necessary for him to do so, by reason of the fact that the deceased, his alleged assailant, was a larger, younger, stronger and more vigorous man * * * and you further find that the defendant * * * having a reasonable apprehension * * * of being seriously * * * injured by the deceased, without the deceased having any deadly weapon * * * the law gives the defendant the right to repel such assault * * * by using a rifle in his self-defense".

Without following the language of the special prayer the court stated the same principle in different words: "The defendant's right of self-defense does not depend upon whether * * * you find from the evidence that Clarence Russell had a knife, or that he was engaging in any specific kind of conduct at the particular time. The question is whether the circumstances were such that he had reasonable grounds for the apprehension that he was in danger of death or great bodily harm, even though the assailant may not have possessed any deadly or dangerous weapon. Whether the deceased had a weapon; * * * whether the deceased advanced towards the defendant in a belligerent manner; * * * whether the defendant was kicked there in the dining room", are all circumstances to be taken into consideration by you; "and then it is for you to say whether the defendant had reasonable grounds for the belief that he was in danger of death or great bodily harm under the circumstances in which he found himself at the time".

Without pausing to inquire whether the accuracy of the prayer is such as to demand compliance, we regard the instruction as given a sufficient response. State v. Beachum, 220 N.C. 531, 17 S.E.2d 674; State v. McKinnon, 197 N.C. 576, 150 S.E. 25; State v. Williams, 189 N.C. 616, 127 S.E. 675; State v. Baldwin, 184 N.C. 789, 114 S.E. 837; State v. Baldwin, 178 N.C. 693, 100 S.E. 345; State v. Wilcox, 132 N.C. 1120, 44 S.E. 625. The defendant criticizes the court's charge as being too general and unresponsive to his specific prayer that the jury be told he had a right to use a rifle in his self-defense. State v. Hill, 141 N.C. 769, 53 S.E. 311; State v. Hough, 138 N.C. 663, 50 S.E. 709. The jury was instructed, however, that the defendant, being in his own home, was under no obligation to retreat to avoid the combat, "but would be legally entitled to stand his ground and to repel force with force and to increase his force so as not only to resist but also to overcome the assault". The jury hardly could have misunderstood this instruction.

The record reveals no exceptive assignment of error which would seem to require a third trial of the case. The verdict and judgment will be upheld.

No error.