State v. Garland , 138 N.C. 675 ( 1905 )

Hoke, J.,

after stating the case: It is the law of this State that where-a man provokes a fight by unlawfully assaulting another and in the progress of the fight kills his adversary, he will be guilty of manslaughter at least, though at the precise time of the homicide it was necessary for the original assailant to kill in order to save his own life. This is ordinarily true where a man unlawfully and willingly enters into a mutual combat with another and kills his adversary. In either case, in order to excuse the killing on the plea of self-defense, it is necessary for the accused to show that he “quitted the combat before the mortal wound was given, and retreated or fled as far as he could with safety, and then, urged by mere necessity, killed his adversary for the preservation of his own life.” Foster’s Crown Law, p. 276.

The same author says on page 277: “He therefore who, in case of a mutual conflict, would excuse himself on the foot of self-defense, must show that before the mortal stroke was given he had declined any further combat and retreated as far as he could with safety, and also that he killed his adversary through mere necessity and to avoid immediate death. If he faileth in either of these circumstances he will incur the penalty of manslaughter.” To the same effect is Lord Hale, who lays it down, “That if A assaults B first, and upon that assaxilt B re-assaults A and that so fiercely that A cannot retreat to the wall or other non ultra without danger of his life, and then kills B, this shall not be interpreted to be se defendendo, but to be murder or simple homicide (manslaughter), according to the circumstances of the case; for otherwise, we should have all the cases of murder or manslaughter by way of interpretation, turned into se defen-dendo. ”

This principle was approved and applied in this State in Brittain’s case, 89 N. C., 481. There, it was held that when a prisoner makes an assault upon A and is re-assaulted so fiercely' that he cannot retreat without danger of his life, and the prisoner kills A, the killing cannot be justified on the ground of self-defense. The first assailant does the first wrong and brings upon himself the necessity of slaying, and is therefore not entitled to the favorable interposition of the law. Applying this doctrine to the facts of this case, the court is of opinion that no error has been committed.

According to the prisoner’s own version of the occurrence, he was asleep in the waiting room of the station and was waked up by the slamming of a door; feeling chilled, he said to the deceased: “Partner, wake that man up and tell him to put some coal in the stove,” and the deceased replied: “I have nothing to do with waking him up;” the prisoner replied, “Can’t you wake him up and tell him to put some fire in the stove?” The deceased then used most insulting language towards the prisoner, and the prisoner jumped up and said, “You have got to take that back,” and advanced towards the deceased ten or twelve feet, when the deceased made a motion as if to draw a pistol, and the prisoner fired and killed him. On cross-examination the prisoner said, “I saw no fire arms on the deceased, no gun, no knife, no rock or stick. He never moved one step towards me, and made no attempt to strike me * *

A fair and correct interpretation of this testimony puts the prisoner in the wrong at the commencement of the difficulty. Although he may have been grievously insulted, yet, -in going up to the deceased, having advanced ten or twelve steps and saying, “You’ve got to take that back,” the prisoner unlawfully brought on the affray, and under the authorities cited the position of self-defense is not open to him, unless he can show that he quitted the combat before the mortal blow was given. In telling the jury that on the prisoner’s own statement, if believed, he was guilty of manslaughter, there was no error, and it is so adjudged.

No Error.