Hoke, J.,
after stating the case: It is insisted, chiefly for the prisoner that his Honor’s charge, in effect, denied him the right to a .perfect self-defense, if the jury should find that he entered into the fight willingly or used language calculated and intended to provoke the difficulty which presently ensued, the objection being that, under our authorities, his Honor should have added “unlawfully” to this feature of his charge. While this may be correct as a general proposition, we are of opinion that it does not arise to defendant on this record.
It is the established position with us that a defendant, prosecuted for homicide in a difficulty which he has himself wrongfully provoked, may not maintain the position of perfect self-defense unless, at a time prior to the killing, he had quitted the combat within the meaning of the law as declared and approved in the recent ease of
S. v. Kennedy,
169 N. C., p. 326, and other like cases. In some of the decisions on the subject it has been stated as a very satisfactory test that this right of perfect self-defense will be denied in cases where, if a homicide had not occurred, a defendant would be guilty of a misdemeanor involving a breach of the peace by reason of the manner in which he had provoked or entered into a fight. Under our decisions such a position would exist:
a.
Whenever one has wrongfully assaulted another or committed a battery upon him.
h.
When one has provoked a present difficulty by language or conduct towards another that is calculated and intended to bring it about.
S. v. Shields,
110 N. C., 497;
S. v. Fanning,
94 N. C., 940;
S. v. Perry,
50 N. C., 9. And, in this connection, it is properly held that language may have varying significance from difference of time and circumstances, and the question is very generally for the determination of the jury.
S. v. Rowe,
155 N. C., 436.
c. Where one' had wrongfully committed an affray, an unlawful and mutual fighting together in a public place, the more recent ruling being to the effect that the “public place,” formerly considered an essential, need be no longer specified or proved.
S. v. Griffin,
125 N. C., 692.
And when there is relevant testimony, it has come to be considered the correct and sufficient definition of an unlawful affray or breach of the peace when one has “entered into a fight willingly” in the sense of voluntarily and without lawful excuse.
S. v. Harrell,
107 N. C., 944.
•Extending and applying these principles to prosecutions for homicide, it has been repeatedly held in this State that where this element of guilt is present, and one has slain another under the circumstances indicated, the offender may not successfully maintain the position of perfect self-defense unless he is able to show, as stated, that at a time prior to the killing he quitted the combat and signified such fact to his adversary.
In the present case his Honor, in effect, ‘ charged the jury 'that if testimony of defendant was believed, they would acquit him. The jury, therefore, having received and acted on the State’s evidence as presenting the true version of the occurrence, and, in the light of this testimony and the principles of law heretofore stated, his Honor was clearly justified in charging the jury as he did that if the defendant entered into the fight willingly or used language calculated and intended to bring it on, he could not maintain perfect self-defense unless he satisfied the jury that he had quitted the combat, etc., the State’s evidence tending to show that the defendant, with his pistol continuously in evidence, had used language towards deceased that, under the circumstances, was well calculated to provoke a breach of the peace, and further, that at the commencement of the difficulty he had made a hostile and threatening demonstration with the weapon.
There are decisions on the subject in other States and by courts of high repute that are not in full agreement with the position as it obtains with us, some of them being to the effect, as we interpret them, that mere language, however insulting, may never be held to deprive a man of his right of self-defense. In some of these cases, however, as pointed out in
S. v. Kennedy, supra,,
the defendant had been convicted of the capital offense of murder, and the Court, in discussing whether such a conviction should be upheld, were not called on to be particularly advertent to the distinction between perfect self-defense, where a defendant is excused
altogether, and imperfect, where the capital offense may be reduced to a lesser degree of the crime. In others the language ordinarily regarded as insulting was used in jest or under circumstances where it could not properly be said to have provoked the difficulty within the meaning of the law. But those cases which hold, as some of them seem to hold, that language, however insulting, may not under any circumstances deprive a man of his right of perfect self-defense in a fight which his own wrongful words have provoked, do not, in our opinion, afford a safe or sound'rule by which to weigh and adjust the significance of human conduct, and the position, as it obtains in this State, is grounded on the better reason and is well sustained by authority.
S. v. Kennedy, supra; S. v. Robertson,
166 N. C., 356;
S. v. Yates,
155 N. C., 450;
S. v. Turnage,
138 N. C., 566;
S. v. Garland, 138
N. C., 675;
S. v. Brittain,
89 N. C., 481;
S. v. Zorn,
202 Mo., 12;
People v. Filippellé,
173 N. Y., 509;
Reid v. State,
11 Texas App., 509;
Adams v. The People,
47 Ill., 376.
In
Yales' case, supra,
it was held: “It is the duty of one who is assaulted to abandon the difficulty and avoid the necessity of killing, if he can do so with reasonable safety; and one who enters into a fight willingly and does not abandon it, but prefers to stand his ground and ■continue in the fight, is guilty of manslaughter at least, if he kills.”
In
Reed v. State, supra, White, C. J.,
delivering the opinion, states the correct doctrine as follows: “But the right of self-defense, though inalienable, is and should to some extent be subordinated to rules of law, regulating its proper exercise, and so the law has wisely provided. It may be divided into two general classes, to wit, perfect and imperfect right of self-defense. A perfect right of self-defense can only obtain and avail where the party pleading it acted from necessity, and was wholly free from wrong or blame in occasioning or producing the necessity which required his action. If, however, he was in the wrong — if he was himself violating or in the act of violating the law — and on account of his own wrong was placed in a situation wherein it became necessary for him to defend himself against an attack made upon himself which was superinduced or created by his own wrong, then the law justly limits his right of self-defense, and regulates it according to the magnitude of his own wrong. Such a state of case may be said to illustrate and determine what in law would be denominated the imperfect right of self-defense.
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Hoke, J.,
after stating the case: It is insisted, chiefly for the prisoner that his Honor’s charge, in effect, denied him the right to a .perfect self-defense, if the jury should find that he entered into the fight willingly or used language calculated and intended to provoke the difficulty which presently ensued, the objection being that, under our authorities, his Honor should have added “unlawfully” to this feature of his charge. While this may be correct as a general proposition, we are of opinion that it does not arise to defendant on this record.
It is the established position with us that a defendant, prosecuted for homicide in a difficulty which he has himself wrongfully provoked, may not maintain the position of perfect self-defense unless, at a time prior to the killing, he had quitted the combat within the meaning of the law as declared and approved in the recent ease of
S. v. Kennedy,
169 N. C., p. 326, and other like cases. In some of the decisions on the subject it has been stated as a very satisfactory test that this right of perfect self-defense will be denied in cases where, if a homicide had not occurred, a defendant would be guilty of a misdemeanor involving a breach of the peace by reason of the manner in which he had provoked or entered into a fight. Under our decisions such a position would exist:
a.
Whenever one has wrongfully assaulted another or committed a battery upon him.
h.
When one has provoked a present difficulty by language or conduct towards another that is calculated and intended to bring it about.
S. v. Shields,
110 N. C., 497;
S. v. Fanning,
94 N. C., 940;
S. v. Perry,
50 N. C., 9. And, in this connection, it is properly held that language may have varying significance from difference of time and circumstances, and the question is very generally for the determination of the jury.
S. v. Rowe,
155 N. C., 436.
c. Where one' had wrongfully committed an affray, an unlawful and mutual fighting together in a public place, the more recent ruling being to the effect that the “public place,” formerly considered an essential, need be no longer specified or proved.
S. v. Griffin,
125 N. C., 692.
And when there is relevant testimony, it has come to be considered the correct and sufficient definition of an unlawful affray or breach of the peace when one has “entered into a fight willingly” in the sense of voluntarily and without lawful excuse.
S. v. Harrell,
107 N. C., 944.
•Extending and applying these principles to prosecutions for homicide, it has been repeatedly held in this State that where this element of guilt is present, and one has slain another under the circumstances indicated, the offender may not successfully maintain the position of perfect self-defense unless he is able to show, as stated, that at a time prior to the killing he quitted the combat and signified such fact to his adversary.
In the present case his Honor, in effect, ‘ charged the jury 'that if testimony of defendant was believed, they would acquit him. The jury, therefore, having received and acted on the State’s evidence as presenting the true version of the occurrence, and, in the light of this testimony and the principles of law heretofore stated, his Honor was clearly justified in charging the jury as he did that if the defendant entered into the fight willingly or used language calculated and intended to bring it on, he could not maintain perfect self-defense unless he satisfied the jury that he had quitted the combat, etc., the State’s evidence tending to show that the defendant, with his pistol continuously in evidence, had used language towards deceased that, under the circumstances, was well calculated to provoke a breach of the peace, and further, that at the commencement of the difficulty he had made a hostile and threatening demonstration with the weapon.
There are decisions on the subject in other States and by courts of high repute that are not in full agreement with the position as it obtains with us, some of them being to the effect, as we interpret them, that mere language, however insulting, may never be held to deprive a man of his right of self-defense. In some of these cases, however, as pointed out in
S. v. Kennedy, supra,,
the defendant had been convicted of the capital offense of murder, and the Court, in discussing whether such a conviction should be upheld, were not called on to be particularly advertent to the distinction between perfect self-defense, where a defendant is excused
altogether, and imperfect, where the capital offense may be reduced to a lesser degree of the crime. In others the language ordinarily regarded as insulting was used in jest or under circumstances where it could not properly be said to have provoked the difficulty within the meaning of the law. But those cases which hold, as some of them seem to hold, that language, however insulting, may not under any circumstances deprive a man of his right of perfect self-defense in a fight which his own wrongful words have provoked, do not, in our opinion, afford a safe or sound'rule by which to weigh and adjust the significance of human conduct, and the position, as it obtains in this State, is grounded on the better reason and is well sustained by authority.
S. v. Kennedy, supra; S. v. Robertson,
166 N. C., 356;
S. v. Yates,
155 N. C., 450;
S. v. Turnage,
138 N. C., 566;
S. v. Garland, 138
N. C., 675;
S. v. Brittain,
89 N. C., 481;
S. v. Zorn,
202 Mo., 12;
People v. Filippellé,
173 N. Y., 509;
Reid v. State,
11 Texas App., 509;
Adams v. The People,
47 Ill., 376.
In
Yales' case, supra,
it was held: “It is the duty of one who is assaulted to abandon the difficulty and avoid the necessity of killing, if he can do so with reasonable safety; and one who enters into a fight willingly and does not abandon it, but prefers to stand his ground and ■continue in the fight, is guilty of manslaughter at least, if he kills.”
In
Reed v. State, supra, White, C. J.,
delivering the opinion, states the correct doctrine as follows: “But the right of self-defense, though inalienable, is and should to some extent be subordinated to rules of law, regulating its proper exercise, and so the law has wisely provided. It may be divided into two general classes, to wit, perfect and imperfect right of self-defense. A perfect right of self-defense can only obtain and avail where the party pleading it acted from necessity, and was wholly free from wrong or blame in occasioning or producing the necessity which required his action. If, however, he was in the wrong — if he was himself violating or in the act of violating the law — and on account of his own wrong was placed in a situation wherein it became necessary for him to defend himself against an attack made upon himself which was superinduced or created by his own wrong, then the law justly limits his right of self-defense, and regulates it according to the magnitude of his own wrong. Such a state of case may be said to illustrate and determine what in law would be denominated the imperfect right of self-defense. Whenever a party by his own wrongful act produces a condition of things wherein if becomes necessary for his own safety that he should take life or do serious bodily harm, then, indeed, the law wisely imputes to him his own wrong, and its consequences to the extent that they may and should be considered in determining the grade of offense, which but for such acts would never have been occasioned.”
And in
People v. Phillipellé, Cullen, J.,
after quoting with approval from
Reed v. State
and
Adams v.
State, concludes as follows: “Tersely stated, it is that, if one takes life, though in defense of his own life, in a quarrel which he himself has commenced with intent to take life or inflict serious bodily harm, the jeopardy in which he has been placed by the act of his adversary constitutes no defense whatever, but he is guilty of murder. But, if he commenced the quarrel with no intent to take life or inflict grievous bodily harm, then he is not acquitted of all responsibility for the affray which arose from his own act, but hi.s offense is reduced from murder to manslaughter.”
We were referred by counsel to
S. v. Baldwin,
155 N. C., 494, and
S. v. Pollard,
168 N. C., pp. 116-119, as authorities against the validity of the present conviction; but, on the facts in evidence as received by the jury, neither case supports the defendant’s position. In
Baldwin’s ■case,
on evidence tending to show that defendant was wrongfully assaulted by deceased with a display of deadly weapons, threatening serious bodily harm, the court charged the jury: “That if the prisoner fought willingly at any time up to the fatal moment, it would be the duty of the jury to convict of manslaughter.” And a new trial was awarded because the charge, as expressed, ignored the evidence tending to show that the deceased was the aggressor and required a conviction if the prisoner at any time fought willingly, though it might have been “rightfully and in his necessary self-defense.” And in
Pollard’s case,
although an instruction which was disapproved contained the expression, “if defendant was willing to enter into a fight with deceased with a deadly weapon he would be guilty of manslaughter,” this was on evidence in behalf of defendant tending to show that deceased was a violent and •dangerous man; that he had made threats against the life of the defendant and, shortly thereafter, came to defendant’s place of business, cursed him, and made a demonstration as if to draw his pistol, when defendant fired and killed him, and the Court held that the entire instruction had so confused the general definition of manslaughter with the right of self-defense, arising to defendant on the evidence, as to create the necessary impression on the jury that defendant would be guilty if "he was willing to fight, though he might have done so rightfully and in "his necessary self-defense, thus making the charge conflict with the principles of
Baldwin’s case.
Neither decision is applicable to the facts as presented in this record, where, on the testimony as received by the jury, the defendant, under a correct charge, has been found to be the :aggressor and to have wrongfully provoked the fight in which the deceased was slain.
There is no error, and the judgment on the verdict is affirmed.
No error.