State v. Thomas , 1969 N.C. App. LEXIS 1361 ( 1969 )

BROCK, J.

In support of his contention that he acted in self-defense, defendant offered evidence of specific threats of violence towards defendant by deceased, and of specific acts and threats of violence by deceased towards defendant’s daughter (wife of deceased).

In rebuttal the State offered the testimony of Sparkwood Bur-well, employer of deceased, and of Leonard Perry, Jr., a brother-in-law of deceased. By the testimony of these witnesses the State sought to show that deceased was a peaceful and nonviolent man.

After the witness Sparkwood Burwell had stated that he did not know anything about deceased’s reputation in the community, he was allowed, over defendant’s objection, to answer questions as follows:

“Q. Did you ever know him to show any temper or —

“A. I said presently he was, during the time he was my employee. He was working for me at the time this happened and he has never shown me no one second of violence or being a vicious man, don’t he couldn’t have worked for me.

“Q. Have you ever seen him display any violence towards his family?

“A. No Sir.”

It not having been established that the witness had ever observed the deceased except while on the job, it seems obvious that the witness was not qualified to answer the questions, had they otherwise been proper inquiries. It w'ould seem manifest that even a vicious and violent man would not likely display such propensities to or in the presence of his employer.

Also, over defendant’s objection, the witness Leonard Perry, Jr. was allowed to testify concerning the peaceful conduct of deceased on an occasion in 1961 when threatened by the son of defendant, and of which defendant had no knowledge.

Defendant’s exceptions and assignments of error to the allowance of these questions and answers are well taken.

On the question of the reasonableness of defendant’s apprehension of death or bodily harm upon his plea that he acted in self-defense, defendant was entitled to offer evidence that deceased was a violent and dangerous man, if such reputation was known to defendant. State v. Morgan, 245 N.C. 215, 95 S.E. 2d 507; State v. Blackwell, 162 N.C. 672, 78 S.E. 316; Stansbury, N.C. Evidence 2d, § 106. Also, for the same purpose, defendant was entitled to offer evidence of threats against defendant by deceased which were communicated to defendant. State v. Rice, 222 N.C. 634, 24 S.E. 2d 483; Stansbury, N.C. Evidence 2d, § 162a.

Where the defendant in a prosecution for homicide makes an attack on the character of the deceased and thereby puts it in issue, the State may, in rebuttal, support its case by introducing evidence that deceased bore the reputation of being a man of peace and quiet. Such evidence by the State must be in rebuttal and limited to the general reputation of the deceased for peace and quiet. State v. Champion, 222 N.C. 160, 22 S.E. 2d 232; Nance v. Fike, 244 N.C. 368, 93 S.E. 2d 443; Stansbury, N.C. Evidence 2d, § 106; Annot., 34 A.L.R. 2d 451 (1954).

The State was allowed impermissible latitude in this case.

New trial.

Campbell and MoeRis. JJ., concur.