State v. . Church

51 S.E.2d 345, 229 N.C. 718, 1949 N.C. LEXIS 341

• Court: Supreme Court of North Carolina
• Decided: January 7, 1949
• Status: Published

Opinion

Denny, J.

The defendant assigns as error the ruling of the court below in permitting the State, over the objection of the defendant, to cross-examine one of defendant’s character witnesses regarding specific acts of the defendant.

Ordinarily where a defendant introduces evidence of his good character it is error to permit the State to cross-examine the character witness as to particular acts of misconduct on the part of the defendant. Neither is it permissible for the State to introduce other evidence of such misconduct. Under such circumstances, however, the State is permitted to introduce evidence of the defendant’s bad character. S. v. Robinson, 226 N. C. 95, 36 S. E. (2) 655; S. v. Shepherd, 220 N. C. 377, 17 S. E. (2) 469; S. v. Lee, 211 N. C. 326, 190 S. E. 234; S. v. Nance, 195 N. C. 47, 141 S. E. 468; S. v. Adams, 193 N. C. 581, 137 S. E. 657; S. v. Holly, 155 N. C. 485, 71 S. E. 450.

The above rule is subject to certain exceptions, among them being where a defendant goes upon the stand and admits certain specific acts of misconduct, as the defendant did in the trial below, and then introduces evidence of his good character, the State has the right to cross-examine such character witness regarding the admitted acts of misconduct in order to ascertain his conception of what constitutes good character. S. v. Quick, 150 N. C. 820, 64 S. E. 168; S. v. Killian, 173 N. C. 792, 92 S. E. 499; S. v. Nance, supra. Also, as Barnhill, J., said in speaking for the Court in S. v. Shepherd, supra: “Such evidence is competent for the purpose of testing the knowledge of the witness concerning the general reputation about which he has testified and to impeach his testimony. That is, it goes to the credibility of the witness and is competent for that purpose only . . . Upon request the court should so limit it. However, Upon general objection only, without request that it be restricted to the use for which it is competent, tlie general objection and exception is not tenable. S. v. Tuttle, 207 N. C. 649, 178 S. E. 76, and cases cited; S. v. Hawkins, 214 N. C. 326, 199 S. E. 284.”

The exceptions upon which this assignment of error is based are without merit.

The defendant brings forward a number of assignments of error based on exceptions to the manner in which the trial judge stated the contentions of the State in his charge to the jury. He insists it was prejudicial error for the court to charge the jury that the State contends that the Churches were mad, that they went to the home of the deceased for the purpose of killing him, with malice in their hearts, because he had assaulted the defendant. Since the court’s attention was not called to any misstatement of facts or omissions in giving the State’s contentions, in time to afford an opportunity for correction, these assignments of error will not be upheld. S. v. Britt, 225 N. C. 364, 34 S. E. (2) 408; S. v. Smith, 225 N. C. 78, 33 S. E. (2) 472; Mfg. Co. v. R. R., 222 N. C. 330, 23 S. E. (2) 32; S. v. Johnson, 219 N. C. 757, 14 S. E. (2) 792; S. v. Wagstaff, 219 N. C. 15, 12 S. E. (2) 657. Moreover, the evidence on this record is sufficient to support the view that the defendant, his father and two brothers, were acting in concert at the time the deceased was killed. S. v. Riddle 228 N. C. 251, 45 S. E. (2) 366.

The defendant also sets out eleven assignments of error based on exceptions to the court’s charge on the right of self-defense. Among these he assigns as error the following portion of the charge: “If a murderous assault was being made on a member of his family, he had the same right to fight in defense of their life as he would in defense of his own.” The defendant insists that the limitation upon the right to fight in defense of his family to a “murderous assault” was prejudicial, inasmuch as he would also have a right to fight in their defense in the case of a non-felonious assault, citing S. v. Bryant, 213 N. C. 752, 197 S. E. 530. The defendant also contends the charge should have gone further and included an instruction to the effect that the defendant would likewise have the right to fight in defense of a member of his family to prevent their receiving great bodily harm, citing S. v. Mosley, 213 N. C. 304, 195 S. E. 830.

We concede that an instruction on the right of self-defense predicated solely upon a felonious assault and omitting to charge as to the defendant’s right to defend himself or a member of his family against a non-felonious assault is ordinarily erroneous. S. v. Minion, 228 N. C. 15, 44 S. E. (2) 346; S. v. Bryant, supra. Likewise, one may fight in defense of himself or a member of his family if he has reasonable grounds to believe that he or a member of his family is about to be killed or to receive great bodily harm. S. v. Mosley, supra; S. v. Anderson, 222 N. C. 148, 22 S. E. (2) 271. However, we think the charge, when considered contextually, is not erroneous in this respect.

Moreover, the cases cited by the appellant and similar decisions are predicated upon facts which warranted the submission of the plea of self-defense to the jury. But according to this record, after the deceased had forbidden the defendant and other members of his family to come on his premises, and after the defendant had caused the deceased to back into his own home at the point of a rifle; the defendant, accompanied by his father and two brothers went on the premises of the deceased and the defendant cursed him and ordered him to come out of his home. He did not come out and Dillard Church, brother of the defendant, called the deceased a coward and a s.o.b., whereupon the deceased ran out of the house and jumped off the porch. And according to the evidence of the State, while the deceased ran after Dillard Church ho did not stirke at him with a knife nor did he attempt to assault the defendant, but, on the contrary, Dillard Church while running around the pick-up truck was hollering “shoot him, shoot him.” According to the uncontradicted evidence on this record, the defendant and his father and two brothers were the aggressors just prior to the fatal shooting, demanding a continuance of the quarrel up to the moment the deceased came out of his house in response to the vile and abusive language of the defendant and his brother Dillard.

The right of self-defense is not available to one who invites another to engage in a fight, unless he first abandons the fight and withdraws from it, and gives notice to his adversary he has done so. S. v. DeMai, 227 N. C. 657, 44 S. E. (2) 218; S. v. Davis, 225 N. C. 117, 33 S. E. (2) 623; S. v. Robinson, 213 N. C. 273, 195 S. E. 824; S. v. Kennedy, 169 N. C. 326, 85 S. E. 42; S. v. Garland, 138 N. C. 675, 50 S. E. 853; 40 C. J. S., Homicide, Sec. 92, p. 954.

It is true the deceased started the controversy, but the defendant stubbornly pursued it, and at the time of the fatal shooting he had not indicated any desire or intention to withdraw from it, but, on the contrary, armed with a deadly weapon, and while under the influence of liquor, he brought a family quarrel to a tragic end. It would seem the jury gave him every consideration he could expect on this record.

We have carefully considered all the numerous exceptions and assignments of error brought forward in the appellant’s brief and while they have been presented with commendable zeal and diligence by his counsel, such prejudicial error as would warrant a new trial has not been shown.

No error.