Devin, J.
The trial of this case necessarily consumed considerable time. Seventy-five witnesses were examined, forty-five for the State and thirty for defendant. The transcript of their testimony fills 180 pages of the record, and the judge’s charge to the jury covered 56 pages. The industry and zeal of defendant’s counsel are reflected in the 187 executions noted at the trial, 108 of them relating to the judge’s charge. Certainly no stone has been left unturned which might disclose error. Under the ordinary limits of an opinion it will be inexpedient to discuss all of the exceptions brought up in defendant’s appeal, but each has been examined and none overlooked.
The defendant assigns error in the admission, over objection of testimony from witness John Johnson to the effect that he knew deceased went to the tenant house on the afternoon of the homicide to check fertilizer as witness had heard him speak of it, and that witness had himself gone there to keep deceased from getting into trouble with the defendant. While the declaration of a deceased person not part of the'
res gestes
would ordinarily be regarded as incompetent, here the admission of the testimony objected to was harmless, as there was no evidence that deceased knew of the proximity of the defendant when he went to the tenant house or that he went for other than some lawful purpose. Likewise, it was competent for this witness to negative the suggestion that he himself went there to attack the defendant. He testified both he and the deceased were unarmed.
The evidence of witness Jimmie Johnson as to the caliber and range of the weapons exhibited was competent, as the witness was shown to have had peculiar knowledge and experience as to such matters from service in the late war in the U. S. Marine Corps, where he was for some time instructor in the use of firearms. While the court did not specifically announce preliminary ruling that he was an expert, by admitting his testimony the court presumably so found.
S. v. Coal Co.,
210 N. C., 742 (752), 188 S. E., 412. The exception to the testimony of the ballistics expert from the E. '33. I. is without merit. Nor can the exception to the testimony of a character witness be sustained. It was for the jury to determine how much weight should be given the testimony.
Defendant’s motion for nonsuit was properly overruled.
S. v. Johnson,
184 N. C., 637, 113 S. E., 617.
Tbe defendant noted exception to the court’s instructions to the jury as to murder in the first degree. However, as the jury acquitted the defendant of the capital felony and found him guilty only of a lesser offense, any errors committed by the court in his charge on this phase of the case were cured by the verdict, and would not afford ground for a new trial in the absence of showing that the verdict of second degree murder was thereby affected.
The defendant has also brought forward in his assignment of error numerous exceptions taken by him to the court’s instructions to the jury as to murder in the second degree; manslaughter, and 'the defendant’s right of self-defense, but an examination of the entire charge in the light of the criticisms thus presented leaves us unconvinced that any prejudicial error was committed by the trial judge in the respects called to our attention. The established principles of law applicable thereto seem to have been stated in substantial accord with the decisions of this Court. "While the court in charging the jury used at times somewhat colorful expressions in stating the contentions of the State and defendant, these expressions seem to have been based on evidence and legitimate deductions therefrom, and we cannot see that consequent harm resulted to the defendant.
The defendant assigns error in that the court’s statement of the State’s contentions consumed more space than that given the defendant’s contentions. We perceive no prejudicial error on that score. He does not complain that any of his contentions were omitted or incorrectly stated. It had been agreed that the court need not recite the evidence in detail otherwise than in stating the contentions of the parties on the evidence.
The defendant excepted to the court’s reference to a matter brought out on cross-examination of the defendant for the purpose of impeachment
(S. v. Wilson,
217 N. C., 123 (127), 7 S. E. (2d), 11.) The defendant testified he was born in North Dakota, but later on cross-examination admitted that in October, 1940, he registered under the Alien Registration Act as an alien. He stated as his reason for so doing that he was born near the line between North Dakota and Canada, and was not sure on which side of the line'he was born, and that he reasoned if it should be shown he was born north of the line without having so registered he might be deported. He testified he left his birthplace at the age of eleven, moved to Ohio, and came to Rocky Mount in 1909. No exception to this evidence was noted. In charging the jury the court stated at some length the defendant’s contention on this point and recapitulated his testimony as to why he had registered as an alien in 1940. The court then in a single sentence stated the State’s contention that one who knew that his birthright was that of the United States would not seek to appear as an alien, and that as certain advantages might accrue
from registering under tbe Alien Eegistration Act, the State contended the registration was not in good faith on the part of the defendant. The court then instructed the jury as follows: “The court instructs you that whether he registered or didn’t register, whether he was born in Canada, North Dakota, North Carolina, or some island in the far seas, would have nothing at all to do with what happened on that field the late afternoon of 26 April, but you are allowed to consider those facts in respect to the registration only as you may relate the whole thing to the credibility of the witness as the witness has testified from the stand, and nothing else.”
We
see no valid ground of complaint as to the court’s action. The defendant’s exception to the court’s definition of malice and reference to how it may be shown is without merit.
The defendant excepted to the court’s instructions to the jury on the defendant’s right of self-defense under the various phases of the evidence. 'While the court’s manner of statement might not be altogether unobjectionable, we think in the main he stated the law correctly, and we perceive no sufficient basis for awarding a new trial on that ground. The court laid down the rule in substance that if the jury should find the defendant was threatened with violence by the deceased and his sons, with present ability to inflict serious harm or death, while the defendant was at a place where he had a right to be and without-fault in provoking the assault, and they found under these circumstances that he intentionally shot and killed the deceased, and they should further find that at the time he was acting under the reasonable apprehension that it was necessary or apparently necessary for him to do so in order to save himself from death or great bodily harm, and he used no more force than was reasonably necessary for that purpose, the law would excuse his act as having been done in self-defense and the jury should acquit.
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Devin, J.
The trial of this case necessarily consumed considerable time. Seventy-five witnesses were examined, forty-five for the State and thirty for defendant. The transcript of their testimony fills 180 pages of the record, and the judge’s charge to the jury covered 56 pages. The industry and zeal of defendant’s counsel are reflected in the 187 executions noted at the trial, 108 of them relating to the judge’s charge. Certainly no stone has been left unturned which might disclose error. Under the ordinary limits of an opinion it will be inexpedient to discuss all of the exceptions brought up in defendant’s appeal, but each has been examined and none overlooked.
The defendant assigns error in the admission, over objection of testimony from witness John Johnson to the effect that he knew deceased went to the tenant house on the afternoon of the homicide to check fertilizer as witness had heard him speak of it, and that witness had himself gone there to keep deceased from getting into trouble with the defendant. While the declaration of a deceased person not part of the'
res gestes
would ordinarily be regarded as incompetent, here the admission of the testimony objected to was harmless, as there was no evidence that deceased knew of the proximity of the defendant when he went to the tenant house or that he went for other than some lawful purpose. Likewise, it was competent for this witness to negative the suggestion that he himself went there to attack the defendant. He testified both he and the deceased were unarmed.
The evidence of witness Jimmie Johnson as to the caliber and range of the weapons exhibited was competent, as the witness was shown to have had peculiar knowledge and experience as to such matters from service in the late war in the U. S. Marine Corps, where he was for some time instructor in the use of firearms. While the court did not specifically announce preliminary ruling that he was an expert, by admitting his testimony the court presumably so found.
S. v. Coal Co.,
210 N. C., 742 (752), 188 S. E., 412. The exception to the testimony of the ballistics expert from the E. '33. I. is without merit. Nor can the exception to the testimony of a character witness be sustained. It was for the jury to determine how much weight should be given the testimony.
Defendant’s motion for nonsuit was properly overruled.
S. v. Johnson,
184 N. C., 637, 113 S. E., 617.
Tbe defendant noted exception to the court’s instructions to the jury as to murder in the first degree. However, as the jury acquitted the defendant of the capital felony and found him guilty only of a lesser offense, any errors committed by the court in his charge on this phase of the case were cured by the verdict, and would not afford ground for a new trial in the absence of showing that the verdict of second degree murder was thereby affected.
The defendant has also brought forward in his assignment of error numerous exceptions taken by him to the court’s instructions to the jury as to murder in the second degree; manslaughter, and 'the defendant’s right of self-defense, but an examination of the entire charge in the light of the criticisms thus presented leaves us unconvinced that any prejudicial error was committed by the trial judge in the respects called to our attention. The established principles of law applicable thereto seem to have been stated in substantial accord with the decisions of this Court. "While the court in charging the jury used at times somewhat colorful expressions in stating the contentions of the State and defendant, these expressions seem to have been based on evidence and legitimate deductions therefrom, and we cannot see that consequent harm resulted to the defendant.
The defendant assigns error in that the court’s statement of the State’s contentions consumed more space than that given the defendant’s contentions. We perceive no prejudicial error on that score. He does not complain that any of his contentions were omitted or incorrectly stated. It had been agreed that the court need not recite the evidence in detail otherwise than in stating the contentions of the parties on the evidence.
The defendant excepted to the court’s reference to a matter brought out on cross-examination of the defendant for the purpose of impeachment
(S. v. Wilson,
217 N. C., 123 (127), 7 S. E. (2d), 11.) The defendant testified he was born in North Dakota, but later on cross-examination admitted that in October, 1940, he registered under the Alien Registration Act as an alien. He stated as his reason for so doing that he was born near the line between North Dakota and Canada, and was not sure on which side of the line'he was born, and that he reasoned if it should be shown he was born north of the line without having so registered he might be deported. He testified he left his birthplace at the age of eleven, moved to Ohio, and came to Rocky Mount in 1909. No exception to this evidence was noted. In charging the jury the court stated at some length the defendant’s contention on this point and recapitulated his testimony as to why he had registered as an alien in 1940. The court then in a single sentence stated the State’s contention that one who knew that his birthright was that of the United States would not seek to appear as an alien, and that as certain advantages might accrue
from registering under tbe Alien Eegistration Act, the State contended the registration was not in good faith on the part of the defendant. The court then instructed the jury as follows: “The court instructs you that whether he registered or didn’t register, whether he was born in Canada, North Dakota, North Carolina, or some island in the far seas, would have nothing at all to do with what happened on that field the late afternoon of 26 April, but you are allowed to consider those facts in respect to the registration only as you may relate the whole thing to the credibility of the witness as the witness has testified from the stand, and nothing else.”
We
see no valid ground of complaint as to the court’s action. The defendant’s exception to the court’s definition of malice and reference to how it may be shown is without merit.
The defendant excepted to the court’s instructions to the jury on the defendant’s right of self-defense under the various phases of the evidence. 'While the court’s manner of statement might not be altogether unobjectionable, we think in the main he stated the law correctly, and we perceive no sufficient basis for awarding a new trial on that ground. The court laid down the rule in substance that if the jury should find the defendant was threatened with violence by the deceased and his sons, with present ability to inflict serious harm or death, while the defendant was at a place where he had a right to be and without-fault in provoking the assault, and they found under these circumstances that he intentionally shot and killed the deceased, and they should further find that at the time he was acting under the reasonable apprehension that it was necessary or apparently necessary for him to do so in order to save himself from death or great bodily harm, and he used no more force than was reasonably necessary for that purpose, the law would excuse his act as having been done in self-defense and the jury should acquit. And the court further instructed the jury that they were to judge of the reasonableness of the apprehension under which he acted, but they must do so in the light of the circumstances as they appeared to the defendant at the time. True the court in stating the principle that one who was where he had a right to be and was without fault in bringing on the difficulty had a right to stand his ground and give back blow for blow, apparently predicated that right upon showing that a felonious assault was being made upon him. Standing alone this would have been érror, as pointed out in
S. v. Bryant,
213 N. C., 752, 197 S. E., 530;
S. v. Moore,
214 N. C., 658, 200 S. E., 427;
S. v. Ellerbe,
223 N. C., 770, 28 S. E. (2d), 519, on the ground that this instruction was calculated to give the jury the impression that before one could successfully plead self-defense he must show that a felonious assault was being made upon him, and that it was the duty of the court to go further and state the principle of law applicable to non-felonious assault, or draw the distinction between them.
S. v. Hough,
138 N. C., 663, 50 S. E., 709;
S. v. Blevins,
138 N. C., 668, 50 S. E., 763. But bere the court proceeded further to explain to the jury what would constitute an assault, under the evidence presented in this case, which would be sufficient to give rise to this right, and justify the defendant in standing his ground and shooting it out if apparently necessary to save himself from death or great bodily harm; and the •court instructed the jury if they were satisfied the deceased and others approached with guns threatening him and close enough to inflict serious injury, even though a gun was not pointed at him, that would constitute an assault. We do not think the defendant can justly complain of the court’s instruction on this phase of the evidence.
S. v. Glenn,
198 N. C., 79, 150 S. E., 663;
S. v. Pennell,
224 N. C., 622, 31 S. E. (2d), 857.
The defendant excepted to the court’s instructions as to the imperfect right of self-defense as applicable to this case. The' court charged the jury in substance that where one was without fault in provoking the difficulty he had a right to stand his ground on his own land and return blow for blow without withdrawing and slay his assailant if necessary or apparently necessary to save himself from death or great bodily harm, but that if the jury found the defendant was at fault in bringing on the difficulty by using language calculated and intended to bring on the difficulty which ensued, and provoked an assault by threats and menace of violence with present ability to inflict it, causing the deceased to do something he otherwise would not - have done, and that the defendant thus became the aggressor, then the defendant would not be entitled to avail himself of plea of self-defense in a situation he had wrongfully brought about until he first tried to withdraw from the difficulty and gave his adversary notice of his intention so to do, and then through mere necessity and to avoid death or great bodily harm fired the fatal shot.
S. v. Garland,
138 N. C., 675, 50 S. E., 853;
S. v. Kennedy,
169 N. C., 326, 85 S. E., 42;
S. v. Crisp,
170 N. C., 785, 87 S. E., 511;
S. v. Glenn, supra; S. v. Robinson,
213 N. C., 273, 195 S. E., 824. However, we think, taking the testimony offered by the State in its most favorable light, there was some evidence upon which to base the instruction complained of. According to the State’s witnesses, the defendant, with a high-powered automatic rifle in his hand- and within range, asserted his intention of immediately killing the deceased, which caused the latter to desist from going where he had the right to go, and to send for his gun to withstand this present menace of violence. The State’s evidence further tended to show that the defendant opened the engagement, began firing and shot and killed his unarmed adversary. The defendant’s contention that these were not the facts and his version of the circumstance and cause of the .shooting, making out a case of complete self-defense, were fully called to the attention of the jury.
Tbe testimony in tbe ease offered by tbe State and tbat by defendant were sharply contradictory at every material point. While tbe defendant earnestly contended tbe evidence warranted a verdict of acquittal on tbe ground of self-defense, tbe jury bas accepted tbe State’s version of wbat happened on this fatal field, and found tbe defendant guilty of murder in tbe second degree. There was evidence to support this finding. No prejudicial error appears on tbe record, and tbe result will be upheld.
No error.