Clarkson, J.
First.
Defendant made exception and assignment of error to the exclusion of the testimony of H. C. Whiteheart above set forth. We do not think that this exception and assignment of error can be sustained.
In
S. v. Turpin,
77 N. C., 473 (476-7), we find: “The general rule prevailing in most of the American states is, that sucb evidence is not admissible, and in this State sucb a general rule is well established.
S. v. Barfield,
8 Ire., 344;
Bottoms v. Kent,
3 Jones, 154;
S. v. Floyd,
6 Jones, 392;
S. v. Hogue,
6 Jones, 381. But these cases which are cited as establishing a general rule excluding sucb evidence admit that there may be exceptions to it, depending upon the peculiar circumstances of each case. And these exceptions themselves are now so well defined and established by the current of the more recent decisions that they have assumed a
formula
and have become a general rule subordinate to the principle rule. It is this:
Evidence of the general character of the deceased as a violent and dangerous man is admissible where there is evidence tending to show that the hilling may have been from a principle of self-preservation, and also where the evidence is wholly circumstantial and the character of the transaction is in doubt,
as in
Tackett's case,
1 Hawks, 210; Horrigan
&
Thompson’s cases of Self-Defense, 695, and Index, under the bead of ‘Character of the deceased for violence,’ for reference to the cases at large.” (Italics ours.)
S. v. Baldwin,
155 N. C., 494, 71 S. E., 212;
S. v. Dickey,
206 N. C., 417 (420).
The rule is thus stated in 30 C. J., 174: “The inquiry as to the character of deceased must relate solely to his general character for violence, ferocity, vindictiveness, or bloodthirstiness. Thus, it is not admissible to prove decedent’s general bad conduct or immorality.”
And in Chamberlayne, Modern Law of Evidence, latter part of sec. 3295, it is said: “Tbat the deceased in a case of homicide was a violent, turbulent man, may, on the other band, be shown by the accused under a plea of self-defense, but not the fact that be was engaged in selling whiskey, was unchaste, or that be was a drinking man where there was no evidence that be bad been drinking on the occasion in question.”
Furthermore, the question propounded was too limited in its scope. It was not in respect of general reputation in the community, but “throughout the police force.”
On the aspect of indecent conduct, the court below gave defendant the full benefit of his defense: “He contends from this evidence that you should not be satisfied beyond a reasonable doubt of his guilt of murder in the first degree and you should acquit him. He contends he was living there; that Searcy attacked him there in the room; that Searcy was sex-perverted; that be found him on top of him; that when be tried to get him off, be fought; that you should find Searcy was a much larger and stronger man than be was, and that Searcy fought around over the room, and Searcy finally got the poker and Searcy knocked him down on the stove; that be got up and Searcy pursued him with the poker and be backed him into the other room; that be stumbled and that be fell near the hatchet; that be got the hatchet and got up and that be struck Searcy with the hatchet while Searcy was coming on him with a poker, and that in doing so be was fighting in self-defense; that be bit Searcy in the bead but be didn’t know bow many times be bit him; that be didn’t bit him after he fell and after be killed him he put him in the trunk. He contends, gentlemen, be was justified in what be was doing; that be is not guilty of an unlawful killing at all, but you should find be is not guilty of anything, but that it is excusable homicide.”
The court further charged: “The law provides that we do not weigh in golden scales equally balanced just bow much force a person may use in fighting under those circumstances, because it is an abnormal condition and he is not his normal self; be is confronted with an emergency and he would not act with the same deliberation and cool judgment that be would if be were not so situated. So the law provides that you take into consideration the situation and the circumstances confronting the defendant in deciding whether it was necessary to use the force be did use or whether it reasonably appeared to him to be necessary.”
N. C. Code, 1935 (Micbie), see. 564, is as follows: “No judge, in giving a charge to the petit jury, either in a civil or criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon.”
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Clarkson, J.
First.
Defendant made exception and assignment of error to the exclusion of the testimony of H. C. Whiteheart above set forth. We do not think that this exception and assignment of error can be sustained.
In
S. v. Turpin,
77 N. C., 473 (476-7), we find: “The general rule prevailing in most of the American states is, that sucb evidence is not admissible, and in this State sucb a general rule is well established.
S. v. Barfield,
8 Ire., 344;
Bottoms v. Kent,
3 Jones, 154;
S. v. Floyd,
6 Jones, 392;
S. v. Hogue,
6 Jones, 381. But these cases which are cited as establishing a general rule excluding sucb evidence admit that there may be exceptions to it, depending upon the peculiar circumstances of each case. And these exceptions themselves are now so well defined and established by the current of the more recent decisions that they have assumed a
formula
and have become a general rule subordinate to the principle rule. It is this:
Evidence of the general character of the deceased as a violent and dangerous man is admissible where there is evidence tending to show that the hilling may have been from a principle of self-preservation, and also where the evidence is wholly circumstantial and the character of the transaction is in doubt,
as in
Tackett's case,
1 Hawks, 210; Horrigan
&
Thompson’s cases of Self-Defense, 695, and Index, under the bead of ‘Character of the deceased for violence,’ for reference to the cases at large.” (Italics ours.)
S. v. Baldwin,
155 N. C., 494, 71 S. E., 212;
S. v. Dickey,
206 N. C., 417 (420).
The rule is thus stated in 30 C. J., 174: “The inquiry as to the character of deceased must relate solely to his general character for violence, ferocity, vindictiveness, or bloodthirstiness. Thus, it is not admissible to prove decedent’s general bad conduct or immorality.”
And in Chamberlayne, Modern Law of Evidence, latter part of sec. 3295, it is said: “Tbat the deceased in a case of homicide was a violent, turbulent man, may, on the other band, be shown by the accused under a plea of self-defense, but not the fact that be was engaged in selling whiskey, was unchaste, or that be was a drinking man where there was no evidence that be bad been drinking on the occasion in question.”
Furthermore, the question propounded was too limited in its scope. It was not in respect of general reputation in the community, but “throughout the police force.”
On the aspect of indecent conduct, the court below gave defendant the full benefit of his defense: “He contends from this evidence that you should not be satisfied beyond a reasonable doubt of his guilt of murder in the first degree and you should acquit him. He contends he was living there; that Searcy attacked him there in the room; that Searcy was sex-perverted; that be found him on top of him; that when be tried to get him off, be fought; that you should find Searcy was a much larger and stronger man than be was, and that Searcy fought around over the room, and Searcy finally got the poker and Searcy knocked him down on the stove; that be got up and Searcy pursued him with the poker and be backed him into the other room; that be stumbled and that be fell near the hatchet; that be got the hatchet and got up and that be struck Searcy with the hatchet while Searcy was coming on him with a poker, and that in doing so be was fighting in self-defense; that be bit Searcy in the bead but be didn’t know bow many times be bit him; that be didn’t bit him after he fell and after be killed him he put him in the trunk. He contends, gentlemen, be was justified in what be was doing; that be is not guilty of an unlawful killing at all, but you should find be is not guilty of anything, but that it is excusable homicide.”
The court further charged: “The law provides that we do not weigh in golden scales equally balanced just bow much force a person may use in fighting under those circumstances, because it is an abnormal condition and he is not his normal self; be is confronted with an emergency and he would not act with the same deliberation and cool judgment that be would if be were not so situated. So the law provides that you take into consideration the situation and the circumstances confronting the defendant in deciding whether it was necessary to use the force be did use or whether it reasonably appeared to him to be necessary.”
N. C. Code, 1935 (Micbie), see. 564, is as follows: “No judge, in giving a charge to the petit jury, either in a civil or criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon.”
The
second
exception and assignment of error is to the effect that the charge impinged the above section, in not defining manslaughter. ¥e think not. The charge must be taken as a whole, not disjunctively, but conjunctively. In the charge of the court below, in regard to manslaughter (in different parts of the charge), is the following: “Section 4200 of the Consolidated Statutes reads as follows: ‘A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or
attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed to be murder in the first degree (and shall be punished with death). All other kinds of murder shall be deemed murder in the second degree (and shall be punished with imprisonment of not less than two nor more than thirty years in the State’s Prison).’ . . . Then there is another statute which provides for manslaughter and the punishment therefor. . . . There are three types of unlawful homicide : Murder in the first degree, murder in the second degree, and manslaughter. Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. . . . Then you would consider whether he is guilty of manslaughter, which is the unlawful killing of a human being without malice. If he has satisfied you from the evidence he is not guilty of the unlawful killing of the deceased, then you would not convict him of anything; you would find him not guilty. ... If the State has satisfied you beyond a reasonable doubt that the defendant is guilty of murder in the first degree, it is your duty to convict the defendant of murder in the first degree. If the State has not done so, then consider murder in the second degree. Is the defendant guilty of murder in the second degree ? The burden is not on the State on murder in the second degree, because the defendant admits that he slew the deceased with a deadly weapon. Then the law requires, in order for him not to be convicted of murder in the second degree, that he come forward with evidence and satisfy you by that evidence that he is not guilty of murder in the second degree, and if he has done so, then you would not convict him of murder in the second degree. If he has satisfied you by the evidence that he is not guilty of murder in the second degree, then consider whether he is guilty of manslaughter, which is the unlawful killing of a human being. He says he is not guilty of that. It is incumbent on him to come forward with evidence and satisfy you that the killing wasn’t unlawful before you would fail to convict him of that offense. He contends he has done that.”
In
S. v. Lance,
149 N. C., 551 (556), speaking to the subject as to manslaughter,
Walker, J.,
says: “Which is the unlawful killing of one person by another, but without malice. This instruction is fully supported by the authorities.”
In
S. v. Baldwin,
152 N. C., 822 (829),
Hoke, J.,
defines manslaughter as follows: “Manslaughter is the unlawful killing of another without malice.”
In Wharton Criminal Law, Yol. 1 (12 Ed.), part sec. 422, p. 637, it is said: “Manslaughter is defined to be the unlawful and felonious killing of another, without malice aforethought, either express or implied.”
From a careful review of the charge we find that it covered every aspect of the controversy and gave the law applicable to the facts. The
court below defined murder in the first degree and second degree, manslaughter, and self-defense. It gave the contentions fairly on both sides and recapitulated the evidence. Malice and reasonable doubt were defined and the presumption of innocence applied and the burden of proof properly defined and applied.
The briefs and arguments of defendant’s counsel were able and persuasive, but on this record not convincing. On the entire record we see no prejudicial or reversible error.
No error.