State v. . Moore

Supreme Court of North Carolina

State v. . Moore

200 S.E. 427, 214 N.C. 658, 1939 N.C. LEXIS 400

CourtSupreme Court of North Carolina

DecidedJanuary 4, 1939

StatusPublished

Cited by6 cases

This text of 200 S.E. 427 (State v. . Moore) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. . Moore, 200 S.E. 427, 214 N.C. 658, 1939 N.C. LEXIS 400 (N.C. 1939).

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Opinion

"WiNBOBNE, J.

On authority of S. v. Bryant, 213 N. C., 752, 197 S. E., 530, and on the factual situation appearing on this record, de *661 fendant’s exceptions present prejudicial error in two aspects: (1) Here as there, after stating the principle of law with respect to tbe right of a man, who without fault himself is murderously assaulted, to stand his ground and fight in self-defense, the court charged that: “In order to have the benefit of this principle of law, the defendant must show that he was free from blame in the matter, that the assault upon him was with felonious purpose, with intent to kill or inflict bodily harm, and that he took life of the deceased only when it was necessary or apparently so to protect himself.” Exception by defendant is well taken to the failure of the court, as it was its duty to do, to go further and explain the principle of law applicable in case of nonfelonious assault. The jury might have found that a felonious assault was not made, but that a nonfelonious assault was made.

(2) Here as there, under authorities there cited, the following charge is held to be erroneous: “The means of force which a person is justified in using in self-defense depends upon the circumstances of the attack and must in no case exceed the bounds of mere defense and prevention, but if the one attacked uses such means of force only as it is necessary, or as reasonably appears to be necessary to repel the attack and save himself from death or great bodily harm, and the death of his assailant ensues, it is justifiable and excusable homicide.”

In S. v. Bryant, supra, it is stated that the error is in the clause “as reasonably appears to be necessary.” The reasonableness of the apprehension of necessity to act, and the amount of force required, must be judged by the jury upon the facts and circumstances as they appeared to the defendant at the time of the killing. The charge being in the present tense might have been understood by the jury to mean as the facts and circumstances appeared at the time of the trial, and being susceptible of that construction it is assumed that the jury so understood.

The authorities on both questions are quoted and cited in S. v. Bryant, supra.

It is fair to the learned judge, who tried this as well as the Bryant case, supra, to say that the opinion in the Bryant case, supra, was handed down after the charge in this case was delivered.

Other exceptions may have merit in them, but as the errors assigned may not recur on another trial, we deem it unnecessary to discuss them here.

Let there be a

New trial.

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"WiNBOBNE, J.

On authority of S. v. Bryant, 213 N. C., 752, 197 S. E., 530, and on the factual situation appearing on this record, de *661 fendant’s exceptions present prejudicial error in two aspects: (1) Here as there, after stating the principle of law with respect to tbe right of a man, who without fault himself is murderously assaulted, to stand his ground and fight in self-defense, the court charged that: “In order to have the benefit of this principle of law, the defendant must show that he was free from blame in the matter, that the assault upon him was with felonious purpose, with intent to kill or inflict bodily harm, and that he took life of the deceased only when it was necessary or apparently so to protect himself.” Exception by defendant is well taken to the failure of the court, as it was its duty to do, to go further and explain the principle of law applicable in case of nonfelonious assault. The jury might have found that a felonious assault was not made, but that a nonfelonious assault was made.

(2) Here as there, under authorities there cited, the following charge is held to be erroneous: “The means of force which a person is justified in using in self-defense depends upon the circumstances of the attack and must in no case exceed the bounds of mere defense and prevention, but if the one attacked uses such means of force only as it is necessary, or as reasonably appears to be necessary to repel the attack and save himself from death or great bodily harm, and the death of his assailant ensues, it is justifiable and excusable homicide.”

In S. v. Bryant, supra, it is stated that the error is in the clause “as reasonably appears to be necessary.” The reasonableness of the apprehension of necessity to act, and the amount of force required, must be judged by the jury upon the facts and circumstances as they appeared to the defendant at the time of the killing. The charge being in the present tense might have been understood by the jury to mean as the facts and circumstances appeared at the time of the trial, and being susceptible of that construction it is assumed that the jury so understood.

The authorities on both questions are quoted and cited in S. v. Bryant, supra.

It is fair to the learned judge, who tried this as well as the Bryant case, supra, to say that the opinion in the Bryant case, supra, was handed down after the charge in this case was delivered.

Other exceptions may have merit in them, but as the errors assigned may not recur on another trial, we deem it unnecessary to discuss them here.

Let there be a

New trial.

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200 S.E. 427, 214 N.C. 658, 1939 N.C. LEXIS 400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moore-nc-1939.

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