Walker, J.
We will consider the exceptions in the order of their statement in the record. The defendants proposed to ask the witness Thomas Rushing how many times the deceased had threatened to take the life of Jesse Price in his presence. The rule in regard to the admissibility of previous threats is stated in S. v. Turpin, 77 N. C., 473, and more recently in S. v. Exum, 138 N. C., 600, and S. v. Baldwin, 155 N. C., 494. The general rule is that proof of the character and habits of the [648]*648deceased, and of bis disposition towards tbe prisoner, is not relevant to tbe issue in trials for homicide, but there are certain well-settled and well-defined exceptions to this rule of exclusion, which are fully stated in the cases we have cited. At the time the question was asked in this ease nothing had developed to bring the proposed evidence within any one of the exceptions, and, we may add, it did not appear that the threats had been communicated to the prisoner. The question was, therefore, properly excluded, under S. v. Exum, supra, as the proof was not again tendered by -the prisoner after the facts and nature of the case had been sufficiently shown to have made it competent.
The prisoner, Robert Price, was asked by his counsel if he went to his 'brother’s house to make peace. Assuming that the question was otherwise competent, under S. v. Hall, 132 N. C., 1095, and S. v. White, 138 N. C., 704, it was leading, and properly excluded for that reason; but the witness had already testified that he went to the house, as a peacemaker, to prevent any difficulty between his brother and Lester Rushing.
Buck Price, brother of the prisoners, had testified as to a prior meeting between Lester Rushing and Jesse Price, when they quarreled about their settlement, and Lester Rushing cursed his brother and threatened to kill him. The State introduced a witness, John Smith, to contradict him, and was allowed to do so over the prisoner’s objection. "We do not see why this ruling was not a proper one. If it was material to know what had occurred at their meeting a few days before the homicide was committed, it was certainly relevant to show that the witness Buck Price had given two conflicting versions of the matter. This exception does not seem to be relied on by the prisoner’s counsel in their brief (S. v. Register, 133 N. C., 747), but we have considered it, nevertheless.
The prisoner, Robert Price, requested the court to charge the jury to return a verdict of acquittal as to him, there being no evidence of his guilt; but we are unable, after a careful examination of the case, to say that there is no evidence of his participation in the affray which led to the death of Lester Rushing. The witness Thomas Rushing testified: “I did not see either of the defendants before we were shot. I did not [649]*649bear them say anything at the time we were shot. I heard them shoot at Jesse’s house before we went. I saw the defendant Jesse shoot. I do not know how many shots he made. They shot so fast I could not count them. I didn’t hear but one shot with'the gun. Both went to shooting pistols, Robert and Jesse Price. I saw them both. They were standing right hy the side -of the wagon, between me and Lester. The wagon was sitting a little to the right of the house, between the barn and house. "When they shot at us, I turned my head to see who it was. I came right down the road where Lester was. I left my brother in the cotton patch. He died at his house about three hours after he was shot. (Points out Jesse’s and Robert’s shots.) I could not tell how many times they shot at us. I have an idea that some eight or ten shots were fired. I did not’ pronounce but one to be a gunshot; the other pistol shots. Robert and Jesse Price both were shooting pistols, standing behind the wagon. Jesse shot the gun. I only shot one time after defendants shot at us.' (They were standing at the same place in front of the wagon when I shot. They shot three times after I did. After I went to Lester’s house, they fled.”
It was not necessary to his conviction that the prisoner, Robert Price, should have had any previous understanding with his brother that they should together attack the Rushings, or that Robert Price should take part in the affray. If he actually engaged in the assault upon them, or was present aiding and abetting his brother in his unlawful 'acts, it would be sufficient to sustain a verdict against him, although his original motive in going to Jesse’s house may have been a good one. He must be judged by what he did, and not merely by what he intended to do. There was, at least, some evidence of his guilt. It was for the jury to weigh it and find therefrom the fact of guilt or innocence. The facts in this case are not like those in S. v. Tachanatah, 64 N. C., 614, and S. v. Howard, 112 N. C., 859. If it be true that the deceased and his brother were walking away from the prisoners, and the latter fired at them, and the shot struck them in the back, we do not see^why this is not some proof of a joint participation in the felonious assault, [650]*650especially when considered in connection witli tbe other evidence in tbe case. Tbe court charged fully and correctly on this phase of tbe case.
Tbe prisoners requested tbe court to submit certain special instructions to tbe jury, and tbe charge of tbe court will show that they were substantially given, and in some instances most favorably to them. Tbe jury were fully cautioned as to bow they should examine ánd weigh testimony of interested witnesses, and no objection to tbe charge, in this respect, is well founded.
The prisoners requested tbe court to charge tbe jury that, in considering tbe plea of self-defense, they should be guided by tbe facts and circumstances as they appeared to them at tbe time of tbe homicide, and if a man of ordinary firmness would reasonably have apprehended, under such circumstances, that he was about to suffer death or serious bodily harm, they should acquit the prisoner. A careful review of the charge satisfies us that the court fully responded to this request, and instructed the jury substantially in accordance with its terms. It is not required that the very language of a prayer should be used in giving the instructions asked for, but it is sufficient for the court to instruct the jury substantially as requested, in its own words — provided, if the party is entitled to the instruction, its force is not weakened or its meaning materially altered by any change in the language. It is true, the' court told the jury that the prisoners must have killed in their necessary self-defense, but he explained to the jury what was meant by this expression in other parts of the charge, and substantially instructed the jury, in language that could not well have been misunderstood, that if they had a reasonable apprehension, under the circumstances surrounding them, that they were about to suffer death or serious bodily harm, their act in slaying the deceased was excusable in law, and they should acquit the prisoners. The charge must be read and construed as a whole. S. v. Exum, supra; Kornegay v. R. R., 154 N. C., 389; S. v. Lewis, ibid., 632. When thus considered, it was a full and clear exposition of the law as applicable to the facts. This case bears no resemblance to S. v. Barrett, 132 N. C., 1005, and S. v. Clark, 134 N. C., 699.
[651]*651The prisoners further excepted to the charge because the court failed to charge fully and explicitly upon manslaughter.
Free access — add to your briefcase to read the full text and ask questions with AI
Walker, J.
We will consider the exceptions in the order of their statement in the record. The defendants proposed to ask the witness Thomas Rushing how many times the deceased had threatened to take the life of Jesse Price in his presence. The rule in regard to the admissibility of previous threats is stated in S. v. Turpin, 77 N. C., 473, and more recently in S. v. Exum, 138 N. C., 600, and S. v. Baldwin, 155 N. C., 494. The general rule is that proof of the character and habits of the [648]*648deceased, and of bis disposition towards tbe prisoner, is not relevant to tbe issue in trials for homicide, but there are certain well-settled and well-defined exceptions to this rule of exclusion, which are fully stated in the cases we have cited. At the time the question was asked in this ease nothing had developed to bring the proposed evidence within any one of the exceptions, and, we may add, it did not appear that the threats had been communicated to the prisoner. The question was, therefore, properly excluded, under S. v. Exum, supra, as the proof was not again tendered by -the prisoner after the facts and nature of the case had been sufficiently shown to have made it competent.
The prisoner, Robert Price, was asked by his counsel if he went to his 'brother’s house to make peace. Assuming that the question was otherwise competent, under S. v. Hall, 132 N. C., 1095, and S. v. White, 138 N. C., 704, it was leading, and properly excluded for that reason; but the witness had already testified that he went to the house, as a peacemaker, to prevent any difficulty between his brother and Lester Rushing.
Buck Price, brother of the prisoners, had testified as to a prior meeting between Lester Rushing and Jesse Price, when they quarreled about their settlement, and Lester Rushing cursed his brother and threatened to kill him. The State introduced a witness, John Smith, to contradict him, and was allowed to do so over the prisoner’s objection. "We do not see why this ruling was not a proper one. If it was material to know what had occurred at their meeting a few days before the homicide was committed, it was certainly relevant to show that the witness Buck Price had given two conflicting versions of the matter. This exception does not seem to be relied on by the prisoner’s counsel in their brief (S. v. Register, 133 N. C., 747), but we have considered it, nevertheless.
The prisoner, Robert Price, requested the court to charge the jury to return a verdict of acquittal as to him, there being no evidence of his guilt; but we are unable, after a careful examination of the case, to say that there is no evidence of his participation in the affray which led to the death of Lester Rushing. The witness Thomas Rushing testified: “I did not see either of the defendants before we were shot. I did not [649]*649bear them say anything at the time we were shot. I heard them shoot at Jesse’s house before we went. I saw the defendant Jesse shoot. I do not know how many shots he made. They shot so fast I could not count them. I didn’t hear but one shot with'the gun. Both went to shooting pistols, Robert and Jesse Price. I saw them both. They were standing right hy the side -of the wagon, between me and Lester. The wagon was sitting a little to the right of the house, between the barn and house. "When they shot at us, I turned my head to see who it was. I came right down the road where Lester was. I left my brother in the cotton patch. He died at his house about three hours after he was shot. (Points out Jesse’s and Robert’s shots.) I could not tell how many times they shot at us. I have an idea that some eight or ten shots were fired. I did not’ pronounce but one to be a gunshot; the other pistol shots. Robert and Jesse Price both were shooting pistols, standing behind the wagon. Jesse shot the gun. I only shot one time after defendants shot at us.' (They were standing at the same place in front of the wagon when I shot. They shot three times after I did. After I went to Lester’s house, they fled.”
It was not necessary to his conviction that the prisoner, Robert Price, should have had any previous understanding with his brother that they should together attack the Rushings, or that Robert Price should take part in the affray. If he actually engaged in the assault upon them, or was present aiding and abetting his brother in his unlawful 'acts, it would be sufficient to sustain a verdict against him, although his original motive in going to Jesse’s house may have been a good one. He must be judged by what he did, and not merely by what he intended to do. There was, at least, some evidence of his guilt. It was for the jury to weigh it and find therefrom the fact of guilt or innocence. The facts in this case are not like those in S. v. Tachanatah, 64 N. C., 614, and S. v. Howard, 112 N. C., 859. If it be true that the deceased and his brother were walking away from the prisoners, and the latter fired at them, and the shot struck them in the back, we do not see^why this is not some proof of a joint participation in the felonious assault, [650]*650especially when considered in connection witli tbe other evidence in tbe case. Tbe court charged fully and correctly on this phase of tbe case.
Tbe prisoners requested tbe court to submit certain special instructions to tbe jury, and tbe charge of tbe court will show that they were substantially given, and in some instances most favorably to them. Tbe jury were fully cautioned as to bow they should examine ánd weigh testimony of interested witnesses, and no objection to tbe charge, in this respect, is well founded.
The prisoners requested tbe court to charge tbe jury that, in considering tbe plea of self-defense, they should be guided by tbe facts and circumstances as they appeared to them at tbe time of tbe homicide, and if a man of ordinary firmness would reasonably have apprehended, under such circumstances, that he was about to suffer death or serious bodily harm, they should acquit the prisoner. A careful review of the charge satisfies us that the court fully responded to this request, and instructed the jury substantially in accordance with its terms. It is not required that the very language of a prayer should be used in giving the instructions asked for, but it is sufficient for the court to instruct the jury substantially as requested, in its own words — provided, if the party is entitled to the instruction, its force is not weakened or its meaning materially altered by any change in the language. It is true, the' court told the jury that the prisoners must have killed in their necessary self-defense, but he explained to the jury what was meant by this expression in other parts of the charge, and substantially instructed the jury, in language that could not well have been misunderstood, that if they had a reasonable apprehension, under the circumstances surrounding them, that they were about to suffer death or serious bodily harm, their act in slaying the deceased was excusable in law, and they should acquit the prisoners. The charge must be read and construed as a whole. S. v. Exum, supra; Kornegay v. R. R., 154 N. C., 389; S. v. Lewis, ibid., 632. When thus considered, it was a full and clear exposition of the law as applicable to the facts. This case bears no resemblance to S. v. Barrett, 132 N. C., 1005, and S. v. Clark, 134 N. C., 699.
[651]*651The prisoners further excepted to the charge because the court failed to charge fully and explicitly upon manslaughter. The prisoners requested no instruction as to manslaughter, and we do not think the evidence warranted the submission of this question to the jury. If the prisoners’ version of the facts was the correct one, they were not guilty, as they manifestly acted in self-defense, and the jury were so instructed; but if the State’s contention was accepted by the jury (and it must have been), then they were guilty, at least, of murder in the second degree. The solicitor did not ask for a conviction of murder in the first degree, so that murder in the second degree was the highest grade of homicide for which they were being tried. As we have said, there is no suggestion of manslaughter in any of the prayers tendered in behalf of the prisoners, but without exception ‘they conclude with the request for an instruction to the jury directing them to return a verdict of not guilty. The case was tried upon the theory of self-defense, and all the evidence tended to show that the prisoners were either guilty of murder or that the homicide was excusable. The court instructed the jury that if they found the facts as the prisoners claimed them to be, they should acquit the defendants. If the jury found the prisoners guilty, they should not return a verdict for manslaughter, without evidence to support it, merely because of an aversion to convict of. the higher felony. Verdicts must be based upon the evidence, and no’t inspired solely by merciful considerations or feelings of sympathy. Jurors are not to be moved by motives of clemency, however commendable they may be, but should decide always according to the facts and the law. There was no view of the facts which called for an instruction as to manslaughter, and in this respect the case is not unlike S. v. White, 138 N. C., 104.
If the State’s evidence is true, the deceased was shot in the back while he was walking away from the prisoners, unconscious of their presence, and when they were in no danger, real or apparent; while, if the prisoners’ evidence be true, Robert Price fled immediately, and Jesse Price also retreated, and fired the fatal shot while doing so. There is no element of manslaughter in these facts. The jury convicted the prisoners of murder in the second degree, we presume, because of the physical facts or [652]*652natural evidence in the case, the testimony of Thomas Rushing and the clothes which were exhibited showing that the Rushings had been shot in the back by some one in their rear, for doing which not even the violent threats of Lester Rushing excused them. Threats of the deceased and fear on the part of Jesse Price induced thereby did not, of themselves, justify the killing. There must have been some act of violence or some other circumstance to rebut the implied malice of the law and excuse or mitigate the offense.
Our consideration of the case has led us to the conclusion that no error was committed at the-trial.
No error.