State v. Rawley , 237 N.C. 233 ( 1953 )

74 S.E.2d 620 (1953) 237 N.C. 233

STATE
v.
RAWLEY.

No. 4.

Supreme Court of North Carolina.

February 25, 1953.

Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., Gerald F. White, Member of Staff, Raleigh, for the State.

Folger & Folger and Woltz & Barber, Mount Airy, for defendant appellant.

WINBORNE, Justice.

Among the numerous assignments of error brought up on this appeal, the first requiring express consideration is that based upon exception to this portion of the charge: "Now, gentlemen of the jury, the court in this case will not explain to you the law of self-defense which sometime arises in homicide cases because it has no application in this case for the defendant in this case claims, and it has been the theory of this trial upon which the case has been tried, that the defendant did not stab the deceased, that is did not consider herself in any danger and that the cutting or the stabbing or the falling upon this knife was an accident; so, gentlemen of the jury, the principle of self-defense has no application in this case and will not be explained to you."

The plea of self-defense or excusable homicide rests upon necessity, real or apparent. In State v. Marshall, 208 N.C. 127, 179 S.E. 427, 428, the principle is clearly stated:

"The * * * decisions are to the effect:

"1. That one may kill in defense of himself or his family, when necessary to prevent death or great bodily harm. State v. Bryson, 200 N.C. 50, 156 S.E. 143; State v. Bost, 192 N.C. 1, 133 S.E. 176; State v. Johnson, 166 N.C. 392, 81 S.E. 941; State v. Gray, 162 N.C. 608, 77 S.E. 833, 45 L.R.A.,N.S., 71.

"2. That one may kill in defense of himself, or his family, when not actually necessary to prevent death or great bodily harm, if he believes it to be necessary and has a reasonable ground for the belief. State v. Barrett, 132 N.C. 1005, 43 S.E. 832.

"3. That the reasonableness of this belief or apprehension must be judged by the facts and circumstances as they appeared to the party charged at the time of the killing. State v. Blackwell, 162 N.C. 672, 78 S.E. 316.

"4. That the jury, and not the party charged, is to determine the reasonableness of the belief or apprehension upon which he acted." State v. Nash, 88 N.C. 618. See also State v. Terrell, 212 N.C. 145, 193 S.E. 161. State v. Mosley, 213 N.C. 304, 195 S.E. 830.

In State v. Johnson, supra, the Court added to the four propositions above set forth a fifth—"that, if there is any evidence that the party charged has killed under a reasonable belief that he is about to suffer death or great bodily harm, and to prevent it, the plea of self-defense must be submitted to the jury." [166 N.C. 392, 81 S.E. 943.]

In other words, there must be evidence from which the jury may find that the party assailed believed at the time that it was necessary to kill his adversary to prevent death or great bodily harm, before he may seek refuge in the principle of self-defense, and have the jury pass upon the reasonableness of such belief.

In the light of these principles, the testimony of defendant to the effect (1) that, at the time, she did not think she was in great enough danger to make it necessary for her to cut deceased; (2) that not only she did not cut him in self-defense, but did not cut him at all; and (3) that she claims he was cut accidentally, refutes the idea that she believed she was in danger of losing her life or of suffering great bodily harm.

Hence, in withholding from the consideration of the jury the principle of selfdefense, error is not made to appear.

Assignments of error 3 and 4, based upon exceptions of same numbers, are to the ruling of the trial judge in excluding, upon objection by the State, evidence as to the general reputation of Thomas Cox, the deceased, for being a dangerous and vicious character while drinking. These exceptions are untenable.

In State v. Turpin, 1877, 77 N.C. 473, where the prisoner offered to prove the general character of the deceased as a violent and dangerous fighting man, this Court said: "The general rule prevailing in most of the American States is that such evidence is not admissible, and in this State such a general rule is well established", citing State v. Barfield, 30 N.C. 344; Bottoms v. Kent, 48 N.C. 154; State v. Floyd, 51 N.C. 392; State v. Hogue, 51 N.C. 381. However, the Court continued by saying: "But these cases which are cited as establishing a general rule excluding such evidence admit that there may be exceptions to it, depending upon the peculiar circumstances of each case. And these exceptions themselves are now so well defined and established by the current of the more recent decisions that they have assumed a formula and have become a general rule subordinate to the principal rule. It is this: Evidence of the general character of the deceased as a violent and dangerous man is admissible where there is evidence tending to show that the killing may have been done from a principle of self-preservation, and also where the evidence is wholly circumstantial and the character of the transaction is in doubt * * *." And such is the law in North Carolina today. The cases are too numerous to cite. See Shepard's North Carolina Citations under first syllabus to the Turpin case. Among these are: State v. Hodgin, 210 N.C. 371, 186 S.E. 495; State v. LeFevers, 221 N.C. 184, 19 S.E.2d 488. See also Stansbury's North Carolina Evidence, Section 106.

Hence, in the light of the holding in the present case that the principle of selfdefense is not applicable, and the evidence is not circumstantial, the testimony offered was properly excluded.

The 6th assignment of error based upon exception No. 6 is to a portion of the charge relating to manslaughter in which, among other things, the court gave this instruction to the jury: "It has not been the theory of this trial in any aspect that there might have been an involuntary killing, that is, by reason of any culpable negligence, so involuntary manslaughter is not involved * * *."

In State v. Hovis, 233 N.C. 359, 64 S.E.2d 564, 568, it is stated that "Involuntary manslaughter has been defined to be, ``where death results unintentionally, so far as the defendant is concerned, from an unlawful act on his part not amounting to a felony, or from a lawful act negligently done'". 1 Wharton Cr.Law, Sec. 305; State v. Williams, 231 N.C. 214, 56 S.E.2d 574; State v. Stansell, 203 N.C. 69, 164 S.E. 580; State v. Turnage, 138 N.C. 566, 49 S.E. 913.

In the light of this principle applied to the evidence shown in the record, and of the theory of the trial below, error is not made to appear in the instruction here considered.

All other assignments of error have been given due consideration, and fail to show error.

Hence in the judgment from which appeal is here taken, we find

No error.