State v. Greer

Sea well, J.

Under the evidence in this case, was it the duty of the trial judge, without special request therefor, to instruct the jury upon the law of self-defense? We answer in the affirmative. C. S., 564; S. v. Thornton, 211 N. C., 413, 190 S. E., 758; S. v. Bost, 192 N. C., 1, 133 S. E., 176; S. v. Godwin, 211 N. C., 419, 190 S. E., 761.

The evidence was, of course, contradictory. But with this fact neither the trial court nor this Court has any concern in applying the principles of law involved. Indeed, upon appropriate instruction, the jury may have found the testimony relied upon by the State less credible than that of the defendant. On a matter of this kind, at least, the statement of the defendant must be accepted as true. S. v. Finch, 177 N. C., 599, 600, 99 S. E., 409.

There is much evidence in the record which should be considered upon the question of self-defense other than the immediate account which lifts the curtain upon the assault- — the occurrences immediately preceding the meeting; the disparity in the size and strength of the parties, Greer weighed 170 pounds, the defendant was a frail woman weighing 110 pounds; the fact that he had previously beaten her almost to death, and renewed the beating that very day; the statement that if she did not “take down the alimony” she would have to pay it out in hospital bills; the fact that she was on her way to give his pistol to the police; the fact that his inhuman beatings had instilled into her uncontrollable fear, and bad rendered ber mental reactions abnormal — all these considered in connection witb ber version of tbe encounter: “I tried to make it to my mother’s bouse. This car drove up almost at Seventeenth and Cherry and someone says, 'There she is now.’ As I walked about two or three steps, he parked the car and jumped out. He started arguing with me, swearing at me and telling me to give him the gun. I told him I wasn’t going to give him the gun and was going to report the gun. He made advances toward me. By me being scared, and beat up, and excited, I put the gun up to protect myself just as he made a lunge toward me. When I threw the pistol up, he wheeled and that is when I squeezed the lemon squeezer and it pierced him in the side. I don’t know what size pistol it was, but it was very short.”

There is in this evidence an inference of self-defense which is not canceled out by the contradictory evidence of the State, even her own declaration to others that the actual shooting was accidental. In her own evidence she attributed it to a fear which neither humanity nor reason may disallow, and of which the law itself is considerate. Taking all the evidence together, the inference that defendant acted under a reasonable apprehension of great bodily harm cannot be said to be based on a mere scintilla.

There was error in failing to instruct the jury on the law of self-defense in connection with defendant’s evidence, and she is entitled to a new trial. It is so ordered.

New trial.