State v. . Ray

After stating the case: The prisoner complains that his case was not fairly tried in the court below, but was unduly prejudiced by certain remarks made by the solicitor in his address to the jury. This matter was brought to the attention of the judge by an affidavit of the prisoner, submitted on his motion for a new trial. The remarks of the solicitor, as set forth in the affidavit, were highly improper, and should have been met with a prompt and stern rebuke from the bench, if they were made; but there is no finding of fact by the judge based upon the affidavit, and we are not at liberty to find them ourselves. We cannot consider affidavits upon such a motion, but the party complaining must request the judge to find the facts or there must be an admission of the truth of the statements contained in (429) the affidavit. We must, therefore, assume that the remarks were not made as set forth, or, if they were, that the judge administered the proper correction and removed any prejudice arising therefrom. Parties complaining of improper remarks made by counsel must object thereto in apt time and proper form. We said in S. v. Tyson, 133 N.C. at p. 698, citing many cases: "The conduct of a trial in the court below, including the argument of counsel, must be left largely to the control and direction of the presiding judge, who, to be sure, should be careful to see that nothing is said or done which would be calculated unduly to prejudice any party in the prosecution or defense of his case, and when counsel grossly abuse their privilege at anytime in the course of the trial, the presiding judge should interfere at once, when objection is made at the time, and correct the abuse. If no objection is made, while it is still proper for the judge to interfere in order to preserve the due and orderly administration of justice and to prevent prejudice and to secure a fair and impartial trial of the facts, it is not his duty to do so, in the sense that his failure to act at the time or to caution the jury in his charge will entitle the party who alleges that he has been injured to a new trial. Before that result can follow the judge's inaction, objection must be entered at least before verdict." If we accept the affidavit as properly reciting the facts, it appears therefrom that the judge did act promptly, and told the jury that the remarks were improper, and we must take it that everything was done to safeguard the prisoner's rights. Exceptions 1 and 2, therefore, are overruled.

The prisoner next excepted to the refusal of the court to give his special prayer for instruction to the jury, viz: "There is no evidence that he did or said anything to provoke or bring on the difficulty with the deceased." This prayer was properly refused, as there was evidence in the case not only that the prisoner was the aggressor, but that he shot the deceased when he was retreating and under circumstances which would have warranted a verdict for murder in the first degree. His own testimony was sufficient for this purpose: "When I got down next to Greeley Hensley, he turned and walked backwards down the road. I guess he stepped from five to seven steps, and I then advanced on him — following him up." There was other evidence that justified (430) the refusal of this instruction. This covers exceptions 3 and 4.

The 5th and 6th exceptions were taken to the court's modification of the prisoner's fourth and sixth requests for special instructions, by which the court inserted in each of the prayers the words, "and the defendant being himself without fault in bringing on the difficulty." We do not know certainly whether the contention of the prisoner is that the instruction should not, in law, have been restricted or qualified by the use of those words, or whether the point is that there was no evidence that the prisoner was in fault, and for that reason this should not have been made by the court. We have already disposed of the latter ground for the exception. As to the former, it may be remarked that the prisoner himself inserted similar language in his second and third prayers concerning his plea of self-defense. But the amendment of the instruction was right in itself. We may take it now as the settled 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 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 doctrine was more fully stated in S. v. Blevins, 138 N.C. 668: "It has been established in this State by several well considered decisions that where a man is without fault, and a murderous assault is made upon him — an assault with intent to kill — he is not required to retreat, but may stand his ground, and if he kills his assailant, and it is necessary to do so in order to save his own life or to protect his person from great bodily harm, it is excusable homicide, and will be so held (S. v. Harris, 46 N.C. 190; S. v.(431) Dixon, 75 N.C. 275; S. v. Hough, ante, 663); this necessity, real or apparent, to be determined by the jury on the facts as they reasonably appeared to him. True, as said in one or two of the decisions, this is a doctrine of rare and dangerous application. To have the benefit of it, the assaulted party must show that he is free from blame in the matter; that the assault upon him was with felonious purpose, and that he took life only when it was necessary to protect himself. It is otherwise in ordinary assaults, even with a deadly weapon. In such case a man is required to withdraw if he can do so, and to retreat as far as consistent with his own safety. S. v. Kennedy, 91 N.C. 572. In either case he can only kill from necessity. But, in the one, he can have that necessity determined in view of the fact that he has a right to stand his ground; in the other he must show as one feature of the necessity that he has retreated to the wall." And in S. v. Hough, 138 N.C. 663, we said: "If the assault was committed under such circumstances as would naturally induce the defendant to believe that the deceased was capable of doing him great bodily harm and intended to do it, then the law would excuse the killing, because any man who is not himself legally in fault has the right to save his own life or to prevent enormous bodily harm to himself." These cases were reviewed and approved in S. v. Lucas, 164 N.C. 471, and more recently in S. v. Robertson, ante, 356, and to them, as precedents may be added S.v. Dixon, 75 N.C. 275; S. v. Brittain, 89 N.C. 481, and S. v. Clark134 N.C. 698.

The writer of this opinion was somewhat doubtful, when the Blevins andGarland cases were decided, whether the doctrine should be carried to such an extreme length, believing that, in many cases, it might be very harsh an unjust in its application, and knowing that it was derived from an author who wrote at a time when the law was not as tender in its regard for human life as it has been in latter days; but it is the established law and has strong authority, in addition to our own cases, to support it. It is essential, perhaps, to the due administration of justice and the peace of society, and may be the cause of preventing frequent brawls and breaches of the law, and in its general operation contribute to the safety and preservation of human life. If, therefore, a murderous assault is made upon a man, and his life or (432) limb is put in jeopardy, he may stand his ground and defend himself, even to the taking of human life, but with this qualification, that he must not, by his own fault, have brought the necessity of so doing upon himself, in which case, if he kills, it is murder or manslaughter, according to the circumstances. If the law were otherwise, he who is guilty of the first offense might have committed it for the very purpose of seeking, under its cover and protection, an opportunity of slaying his enemy, or his adversary, for some real or imagined grievance. For this reason we have adopted the principle in the law of homicide already stated, and as given by Foster in his Crown Law, p. 276, and to which, as will appear in Garland's case, we have added this other statement by him, at p. 277: "He, therefore, who in case of a mutual conflict would excuse himself on the plea 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 assault B. reassaults 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 defendendo."

The same principle was stated by Justice Hoke in Garland's case, as having been applied in S. v. Brittain, 89 N.C. 481, and may be thus formulated:

When it appears that the prisoner had made an assault upon A. and was reassaulted so fiercely that he could not retreat without danger to his life, and he kills A., the killing cannot be excused upon the ground of self-defense. The first assailant has done the first wrong and, thereby, has brought upon himself the necessity of slaying his adversary, and is, therefore, not entitled to the favorable consideration of (433) the law.

We think the presiding judge correctly stated this principle to the jury in his charge.

We may repeat here what we substantially said in S. v. Robertson, supra: The jury could well have found upon the testimony that the prisoner fought, not only willingly, but aggressively, and that the whole difficulty is traceable to his original misconduct.

The prisoner further excepts because the court instructed the jury once or twice that in order to sustain the plea of self-defense the prisoner must have acted from necessity, in other words, that the killing should have been really necessary to the protection of his own life or to save him from great bodily harm. But we do not so understand the charge, which must be construed as a whole and not in segments. S. v. Exum, 138 N.C. 599;Kornegay v. R. R., 154 N.C. 389; Bird v. Lumber Co., 163 N.C. 162. The court had fully explained to the jury what the term "necessity" meant in the law of homicide — that it was either real or apparent necessity — and he impressed clearly upon the jury the view that if the prisoner slew the deceased from either real or apparent necessity, he was entitled to an acquittal, and when he used the word "necessity," it was simply for the purpose of distinguishing between the two grades of homicide, murder and manslaughter, by drawing the attention of the jury to the fact that if the prisoner fought and killed under the influence of passion merely, and not from the "necessity" of saving himself from death or bodily harm, it would be manslaughter, and this is what was emphasized in S. v. Garland, supra. There can be no mistake as to the correctness of Judge Carter's charge to the jury, for at the very last, and after he had illustrated the difference between murder and manslaughter and used the words considered as objectionable, he told the jury that "the law excuses the killing in self-defense upon the principle of necessity — a real necessity or an apparent necessity." There was no conflict or uncertainty in this charge, but it was clear, comprehensive, and consistent throughout, and intelligible to the most ordinary mind.

(434) What we said in S. v. Price, 158 N.C. 641, is applicable here: "It is true, the court told the jury that the prisoners must have killed in their necessary self-defense, but he explained to the jury what was meant, by this expression in other parts of the charge, and substantially instructed the jury, in language that could not well have been misunderstood, that if they had a reasonable apprehension, under the circumstances surrounding them, that they were about to suffer death or serious bodily harm, their act in slaying the deceased was excusable in law, and they should acquit the prisoners. The charge must be read and construed as a whole. S. v. Exum, supra; Kornegay v. R. R., 154 N.C. 389;S. v. Lewis, ibid., 632. When thus considered, it was a full and clear exposition of the law as applicable to the facts. This case bears no resemblance to S. v. Barrett, 132 N.C. 1005, and S. v. Clark,134 N.C. 699." The prisoner's counsel relied on S. v. Barrett, supra; S. v.Clark, supra, and S. v. Morgan, 136 N.C. 628; but they are no more authorities for the contention than they were for a similar one in S. v.Price, supra.

The charge, in its entirety, was exceedingly fair and favorable to the prisoner. He has had the benefit of every principle of law to which he was legally entitled, and the evidence was fully explained to the jury in its different bearings, and in every possible phase of it.

A careful review of the record convinces us that no error was committed at the trial.

No error.

Cited: S. v. Pollard, 168 N.C. 121; S. v. Coble, 177 N.C. 592; S. v.Johnson, 184 N.C. 645; Milling Co. v. Highway Com., 190 N.C. 697; S. v.Robinson, 213 N.C. 280.