State v. . Gaddy

81 S.E. 608, 166 N.C. 341, 1914 N.C. LEXIS 404

• Court: Supreme Court of North Carolina
• Decided: April 29, 1914
• Status: Published

Opinion

AlleN, J.

The first exception is to the charge, where his Honor said: “But if an assault is made, and the person assaulted does not apprehend, and does not have reasonable grounds for apprehending, either that his life is in danger or that he is in danger of great bodily harm, it is his duty ordinarily to abandon the contest if a way is open for retreat, before taking the life of his assailant. Under such circumstances, it is the duty of the person assaulted to abandon the contest if he can do so with reasonable safety.”

In this connection, his Honor also charged: “If you find from the evidence that deceased made an assault upon the defendant without a deadly weapon, you may consider all evidence tending to show the relative size, strength, and position of deceased and defendant, together with other circumstances arising upon the evidence, in determining whether the fierceness of the assault upon the part of the deceased was such that the defendant apprehended, or had reasonable grounds to apprehend, either that he was in danger of losing his life or of great bodily harm at the bands of tbe deceased. . . . Where a man is in a place where he has a right to be, and is doing what he has a right to do, and is assaulted in a violent manner and under such circumstances as reasonably to lead him to believe, and he does believe, that he is in danger of being hilled or of receiving some serious bodily harm, and he is himself without fault, the law does not require him to flee, but he may stand his ground and repel his assailant with such force as may appear to him, under all the circumstances, to be reasonably necessary.”

The charge is fully supported by the authorities. S. v. Blevins, 138 N. C., 668; S. v. Dove, 156 N. C., 653.

The second exception is to the refusal to charge the jury that, “if they find from the testimony that the deceased laid his hands in rudeness or in violence upon the defendant’s mother, and the defendant had reason to believe and did believe that his mother was in danger of receiving injury at the hands of the deceased, then the defendant had the right to use such force as was reasonably necessary to repel the attack upon his mother.”

This prayer was substantially given when the court said: “There is evidence tending to show that the deceased assaulted his mother. The court charges you that members of a family have the legal right to protect and defend one another. But the right to defend another can be no greater than the latter’s right to defend himself. Though a son may fight in defense of his mother, the son’s act must receive the same construction the act of the mother would have received if it had been done by herself. If you find from the evidence that the deceased made an assault on the defendant’s mother, she had the legal right to use such force as was necessary, or such force as reasonably appeared to her to be necessary, to repel the assault. And if you find from the evidence that the defendant under these circumstances seized the deceased when he was in the act of making an assault on their mother, and that the defendant used no greater force than the mother had a legal right to use under the same circumstances, and that a combat immediately thereafter ensued between deceased and defendant, the defendant in doing so would not, for this reason, be deemed to be in fault in bringing on the fight, and the defendant would not, for this reason, be denied the right of relying upon the plea of self-defense. If you find from the evidence that the deceased assaulted the defendant because the defendant intervened between him and his mother, under the circumstances which have just been stated, and for the defense of his mother, the act of the defendant would not be deemed to be a legal provocation for an assault by the deceased upon the defendant; and if you find from the evidence that the deceased assaulted the defendant under these circumstances, you will then find that the defendant had a legal right to use such force as was necessary, or such force as reasonably appeared to him to be necessary, under the circumstances, to repel the assault. He had the legal right to use such force as was necessary, or such as reasonably appeared to him to be necessary, to save his life or prevent great bodily harm.”

The qualification that the conduct of the defendant in fighting in defense of his mother must receive the same construction as her conduct in her own defense is in accord with our decisions. S. v. Greer, 162 N. C., 648.

The third exception is to the failure to instruct the jury under what circumstances the defendant would be without fault, and to the refusal to give the following instruction: “The court charges you that when a man is in a place where he has a right to be, and is doing what he has a right to do, and is assaulted in a violent manner and under such circumstances as to reasonably lead him to believe, and he does believe, that he is in danger of being killed or of receiving some serious bodily harm at the hands of his assailant, the law does not require him to flee, but he may stand his ground and defend himself with such force as may appear to him under the circumstances to be reasonably necessary; and if he kills his assailant in so doing, the law calls it justifiable self-defense.”

The instruction was given as requested, except the words “being without fault” were added, and the jury were told that the test of the defendant being without fault was not that he fought willingly, but, Did he provoke or bring on the difficulty ?

Thus explained, the charge was equivalent to saying that if the defendant was where he had a right to be, and was doing what he had the right to do, and he did not provoke or bring on the difficulty, he was not required to flee, and could defend himself, which was favorable to the defendant.

The fourth exception is to the charge that the defendant must be without fault, and has been already considered.

The fifth exception is to the refusal to instruct the jury that, “although under ordinary conditions the law does not excuse the use of a deadly weapon to repel a simple assault, this principle does not apply where from the testimony it may be inferred that the use of such weapon was or appeared to be reasonably necessary to save the person assaulted from great bodily harm, such person having been in no default in bringing on or unlawfully entering into the fight. In such case the defendant’s right of self-defense is a question for the jury. It is not necessary to the existence of this right that the defendant should have been assailed with a deadly weapon. The jury may consider the fierceness of the assault upon him, the position of the parties, and the difference in their relative size and strength, with a view of determining whether, under all the circumstances, the defendant was reasonably led to believe and did believe that he was in danger of being killed or of receiving serious bodily harm at the hands of the deceased.”

The instruction is taken from S. v. Hill, 141 N. C., 771, and was given, except his Honor added the language taken from the opinion in the Hill case■, and omitted in the instruction: “It may, in exceptional instances, arise when the fierceness of this assault, the position of the parties, and the great difference in their relative sizes or strength show that the danger of great bodily harm is imminent,” and then follows the first excerpt from the charge, copied in this opinion, thereby applying the exceptional cases to the contentions of the defendant.

The degree of force which the defendant could use in his self-defense, and how the evidence should be considered, were car-fully explained to the jury, and there was no error in the charge that the killing with a deadly weapon being proven or admitted, the burden would then be on the defendant to prove matters in excuse or mitigation, with the explanation that this rule did not require the defendant to introduce evidence, and that he could rely on the evidence for the State.

Tbis bas been settled since tbe case of S. v. Willis, 63 N. C., 26.

Tbe charge, considered as a whole, is clear, full, and accurate, and fairly presents tbe contentions of tbe defendant as to law and fact.

No error.