Citation Numbers: 28 S.E.2d 519, 223 N.C. 770
Judges: DENNY, J.
Filed Date: 1/12/1944
Status: Precedential
Modified Date: 1/13/2023
BARNHILL, J., dissenting. Criminal prosecution tried upon indictment charging the defendant with the murder of Otis Leak.
Verdict: Guilty of manslaughter. Judgment: Imprisonment in the State's Prison for a term of not less than seven nor more than fifteen years.
The defendant appeals, assigning errors. This defendant was at the home of Martha Josephs on the night of 6 January, 1933. Otis Leak had been there and had left to get someone to take him and the defendant on a trip. Leak requested the defendant to remain there until he returned. While the defendant was waiting for Leak's return, Jesse Rogers came up "and appeared like he was drunk." A quarrel ensued and the defendant testified that Rogers said when he left, "That is all right, I will get you, I am going off and will come back and get you." In this he is corroborated by the State's evidence. The defendant left and hunted for Otis Leak but failed to find him. He thereupon returned to the home of Martha Josephs, where he had slept the night before. Martha's house contained two front rooms and a back-shed, which was used as a kitchen. Just prior to the shooting, the defendant and Martha were sitting by the fire in the front room of the house, which room adjoined the kitchen. This room and the kitchen were connected by a "middle door." The defendant was sitting with his back to this door. Martha heard someone in the kitchen and said, "Will, there is somebody in the room." Defendant testified: "I got up and took my pistol out of my pocket, I was right against the door and I could hear him scratching against the door trying to find the knob in *Page 772 the dark, and Martha spoke and said, `Who is that?' and nobody said nothing, and I hollered loud enough to hear me might near a block because I was scared and I said, `Who in the hell is that?' and wouldn't nobody say nothing whatever, and I said `Whomsoever you is go outside, you come in here and I am going to shoot you,' and about that time he found the knob and began pulling the door open and I reckon he must have cracked it that much (witness measures with hands). And that is when I shot twice through the door. I thought it was Jesse Rogers at the door because he wouldn't answer and I shot because I was scared, I was afraid I would get shot; I was looking for Jesse to come back and kill me as he said he would; I was afraid of Jesse and lots of people in town was; his character was bad for being violent and dangerous."
This evidence appears to be sufficient to entitle the defendant to have his plea of self-defense considered by the jury. S. v. Kimbrell,
The exception is well taken and must be sustained. It is apparent the instruction complained of was the result of an inadvertence on the part of the able trial judge. However, after properly charging the law on the plea of self-defense, the court instructed the jury that in order to have the benefit of this principle of law, "the defendant must show that he was free from blame in the matter, and that the assault or threatened assault was made upon him with a felonious purpose, and that he took the life of the person who was threatening to assault him, or the person that he has reasonable ground to believe was threatening to assault him. *Page 773 only when it was necessary to save himself from death or great bodily harm."
We think the instruction, in the light of the facts and circumstances set forth in this record, is objectionable in two respects. In the first place, the defendant cannot show that the assault or threatened assault was made upon him with a felonious purpose. At most, he can only show that he believed a felonious assault was about to be made upon him. In the second place, he cannot show that it was necessary to kill his supposed assailant to save himself from death or great bodily harm, for he killed Otis Leak, his friend, under the misapprehension that Leak was Jesse Rogers. Therefore, in no event can he show more than that he took the life of the person that he had reasonable ground to believe was about to commit a felonious assault upon him, when it appeared to him to be necessary to save himself from death or great bodily harm.
One may kill in defense of himself when it is not actually necessary to prevent death or great bodily harm, if he believes it to be necessary and has a reasonable ground for such belief. S. v. Barrett,
The distinction referred to above constitutes the crucial point involved on this appeal. S. v. Terrell,
In the case of S. v. Nash,
The reasonableness of the belief or apprehension of the defendant must be judged by the facts and circumstances as they appeared to him at the time of the killing. S. v. Blackwell,
Quoting further from S. v. Barrett, supra, the Court said: "In some of the early cases expressions may be found which would seem to indicate that a case of self-defense is not made out unless the defendant can satisfy the jury that he killed the deceased from necessity, but we think the most humane doctrine and the one which commands itself to us as being more in accordance with the enlightened principles of the law is to be found in the more recent decisions of this Court. It is better to hold, as we believe, that the defendant's conduct must be judged by the facts and circumstances as they appeared to him at the time he committed the act, and it should be ascertained by the jury, under the evidence and proper instructions of the court, whether he had a reasonable apprehension that he was about to lose his life or to receive enormous bodily harm. The reasonableness of his apprehension must always be for the jury, and not the defendant, to pass upon, but the jury must form their conclusion from the facts and circumstances as they appeared to the defendant at the time he committed the alleged criminal act. If his adversary does anything which is calculated to excite in his mind, while in the exercise of ordinary firmness, a reasonable apprehension that he is about to assail him and take his life or to inflict great bodily harm, it would seem that the law should permit him to act in obedience to the natural impulse of self-preservation and to defend himself against what *Page 775 he supposed to be a threatened attack, even though it may turn out afterwards that he was mistaken, provided always as we have said, the jury find that his apprehension was a reasonable one and that he acted with ordinary firmness."
It is well to keep in mind the distinction between assaults with felonious intent and assaults without such intent when considering the plea of self-defense, as pointed out in the case of S. v. Glenn,
It is contended on behalf of the State that, taking the charge contextually, there is no prejudicial error. We cannot so hold. An erroneous instruction upon a material aspect of the case is not cured by the fact that in other portions of the charge the law is correctly stated. This is especially applicable in the instant case, because the jury was instructed that, in order for the defendant to have the benefit of the principle of law, that is of self-defense, he must show certain things, some of which he was not required to show under the facts and circumstances disclosed on this record, in order to have the jury consider his evidence on the plea of self-defense. It is impossible to determine on which of the instructions the jury acted. S. v. Isley,
We deem it unnecessary to discuss the other exceptions.
For the reasons stated, the defendant is entitled to a
New trial.
State v. . Holland , 193 N.C. 713 ( 1927 )
State v. . Floyd , 220 N.C. 530 ( 1941 )
State v. . Isley , 221 N.C. 213 ( 1942 )
State v. . Bryant , 213 N.C. 752 ( 1938 )
S. v. . Gray , 162 N.C. 608 ( 1913 )
State v. . Robinson , 213 N.C. 273 ( 1938 )
State v. . Kimbrell , 151 N.C. 702 ( 1909 )
State v. . Starnes , 220 N.C. 384 ( 1941 )
State v. . Johnson , 166 N.C. 392 ( 1914 )
State v. . Glenn , 198 N.C. 79 ( 1929 )
State v. . Bush , 184 N.C. 778 ( 1922 )
State v. . Barrett , 132 N.C. 1005 ( 1903 )
State v. . Roddey , 219 N.C. 532 ( 1941 )
State v. . Terrell , 212 N.C. 145 ( 1937 )
State v. . Elmore , 212 N.C. 531 ( 1937 )
State v. . Anderson , 222 N.C. 148 ( 1942 )
State v. . Johnson , 184 N.C. 637 ( 1922 )
State v. . Nash , 88 N.C. 618 ( 1883 )
State v. Pearson , 288 N.C. 34 ( 1975 )
State v. Watkins , 283 N.C. 504 ( 1973 )
State v. Richardson , 341 N.C. 585 ( 1995 )
State v. Jones , 299 N.C. 103 ( 1980 )
State v. Maynor , 331 N.C. 695 ( 1992 )
State v. Spaulding , 298 N.C. 149 ( 1979 )
Godwin v. Johnson Cotton Co. , 238 N.C. 627 ( 1953 )
State v. Wilson , 304 N.C. 689 ( 1982 )
State v. Potter , 295 N.C. 126 ( 1978 )
State v. Norris , 303 N.C. 526 ( 1981 )
State v. Fowler , 250 N.C. 595 ( 1959 )
State v. Jennings , 276 N.C. 157 ( 1970 )
Primm v. King , 249 N.C. 228 ( 1958 )
State v. Goode , 249 N.C. 632 ( 1959 )
State v. . Spruill , 225 N.C. 356 ( 1945 )
Hobbs v. . Drewer , 226 N.C. 146 ( 1946 )
State v. Anderson , 230 N.C. 54 ( 1949 )
State v. . Demai , 227 N.C. 657 ( 1947 )
State v. Clay , 297 N.C. 555 ( 1979 )