State v. Ramey , 1969 N.C. App. LEXIS 1521 ( 1969 )

Morris, J.

The defendant argues that the trial court committed error in not charging the jury that one is not deprived of the plea of self-defense because he was at fault in entering the encounter, if he voluntarily quit the fight or encounter and communicated that fact to his adversary.

In the present case there is evidence that the defendant started the argument between himself and the deceased by cursing the deceased. Evidence introduced by the defendant, if believed, would tend to show that after the original encounter between the parties the defendant went into his home for three or four minutes to allow the deceased to “cool off”; that he returned to his porch without his gun; that defendant did not get his gun until he saw the deceased coming toward his (defendant’s) house with a gun; and that the defendant was asking the deceased “not to do it” when deceased fired his gun.

In State v. Fairley, 227 N.C. 134, 41 S.E. 2d 88, the evidence indicated that the defendant had started the dispute, but at the time of the shooting he was backing away from the deceased and was trying to quit the combat and to so notify the deceased. Defendant was granted a new trial because of the court’s failure to instruct the jury on this aspect. To the same effect, see State v. Robinson, 213 N.C. 273, 195 S.E. 824, where the Court stated:

“The charge failed to advert to and explain the law with reference to substantive rights of each of the defendants. As to both defendants the court below declared the law as to when they could not plead the perfect self-defense. Having done so, he should have gone further and told the jury that the right of self-defense may be restored to one who has started a fight, or entered into it willingly, by quitting in good faith and giving his adversary notice of such action on his part.”

We think that in the present case there was some evidence from which the jury might infer that the defendant was trying to quit the argument and that this fact was communicated to the deceased. The trial court committed prejudicial error in failing to charge on this feature of the law of self-defense. State v. Fairley, supra; and State v. Robinson, supra.

“The failure of the court to instruct the jury on substantive features of the case arising on the evidence is prejudicial error. This is true even though there is no special prayer for instructions to that effect. S. v. Merrick, 171 N.C. 788, 88 S.E., 501; S. v. Bost, supra (192 N.C. 1, 133 S.E. 176); S. v. Thornton, supra (211 N.C. 413, 190 S.E. 758); School Dist. v. Alamance County, 211 N.C., 213, 193 S.E., 31.” State v. Robinson, supra.

In instructing the jury the trial court stated the following: . . if you should find from the evidence in this case beyond a reasonable doubt that the defendant shot and killed the deceased and that the defendant himself or his family used excessive force . . .” (Emphasis added.) It is apparent that the underscored portion of the charge was a lapsus linguce. However, it must be held to be error.

“It is apparent from the exemplary manner in which the learned trial judge charged the jury in other respects and the able manner in which he presided at this trial that this erroneous portion of the charge was a lapsus linguce. However, this Court has held many times that when there are conflicting instructions upon a material point, one correct and one incorrect, a new trial must be granted. Since the jury is not supposed to know which is the correct instruction, we must assume that the jury’s verdict was influenced by that portion of the charge which is incorrect.” State v. Weston, 273 N.C. 275, 159 S.E. 2d 883.

We do not discuss the defendant’s other assignments of error as there must be a new trial, and they are not likely to re-occur.

New trial.

Campbell and Brock, JJ., concur.