106 S.E. 151 | N.C. | 1921
Plaintiff alleged that he and W. G. Stokes, father of the other defendant, had some disagreement about a telephone, W. G. Stokes seeming to be very much "wrought up" about it. That they got into a heated controversy. Plaintiff testified: "I told him to keep his mouth out of my business; he then stepped over to a pile of bricks, and I shoved him on them; about that time I saw his son, W. F. Stokes, coming with a brick in each hand, and I knew they had me foul. The boy threw one brick at me, which went over my head, but the next one hit me, and I spinned around, wrenched my ankle, and fell; before I could recover and get up, W. G. Stokes jumped astraddle of me and hit me with a brick. I did not know anything else; some boys took me up. When I recovered I found W. G. Stokes standing over me. As a result of the wound I went to the hospital; Dr. Basnight phoned Dr. Taylor, and he took me to the hospital. I think I was in the hospital about ten days. I was totally unable to do anything for about thirty days." Plaintiff further testified that afterwards his ability to labor was considerably impaired, and that he suffered pains in his head, whereas, before he received the blow, he could do any kind of hard work. This testimony is stated first to show the serious character of the assault upon him, and secondly, the wide difference between the parties in their several versions of the facts.
The defendants denied the truth of the plaintiff's testimony, and W. G. Stokes stated, on the contrary, that he and plaintiff had an altercation and plaintiff cursed him. He then said: "I had nothing to defend myself with, and I knew he was dangerous. I walked to a pile of brick and he jumped on me. It was all so quick I hardly knew what had happened, but I heard my son say, `Get off of papa.' I did not touch him a lick. I was as far as from here to Colonel James from the brick, and had no brick. At the time he jumped on me I was not trying to strike him. He jumped on me and threw me down. I turned him over, but did not hit him. In the trial before I understood that William hit him. . . . The scuffle lasted about one minute and a half. I won't tell the jury whether he was struck in the face while he was standing up or while he was on *61 me. I was able to turn him over. I am sure he was hit while he was on me, because I was able to turn him over. I stood over him until the people came there and took him away. They all came right over there. I was straddle of him, but I did not offer to hit him; I had nothing to hit him with. I never had a fight in my life. Have never been in court. He did not hit me with a brick. He would have killed me if William had not come to me in time. My son saved my life; he is a heavy man; I am no fighter myself."
W. F. Stokes testified: "I noticed Roberson coming toward my father. He was cursing, and I realized that my father was in danger, and I thought it was my duty to protect him. Roberson had my father down and running toward him I picked up a brick and threw it at him as a warning, but he did not get off. By that time Roberson was on the bottom and my father was on top. I had two bricks in my hand and I threw both of them. Roberson was on my father when I threw the first and second brick. They were about 10 or 15 feet from the pile of brick. I did not see my father have any brick in his hand. There was no brick within his reach. I threw the first brick as a warning and it went over his head. Then my father turned him over. At the time I threw the second brick I thought it was necessary to save my father's life. I knew it was a matter of life and death. I have known Mr. Roberson all of his life."
The court gave the jury this instruction, to which the plaintiff excepted: "If I go out there today, when one of you has done nothing to cause trouble, and knock you down, and your son sees me with you down, the law says your son has a right to protect you from serious bodily harm at my hands." This instruction was given after his Honor had read from Wharton on Homicide (3 ed.), at bottom of page 775, on the right of a son to defend his father.
The judge also charged that the burden as to both issues was upon the plaintiff, when the defendant, W. F. Stokes, admitted that he had struck the plaintiff with the brick, or that he had hurled the brick at him, "hitting the mark exactly."
The verdict was against the plaintiff as to all the issues, and from the judgment thereon he appealed. After stating the case: There are twenty-seven assignments of error, but we need refer to only two of them, though there may be others worthy of serious consideration, as strongly contended by the *62 plaintiff's counsel; but we must not be taken as intimating that there was any error except in the respect now indicated by us.
It was erroneous to charge the jury as set forth in the above statement of the case for two reasons: 1. It was based upon the assumption that defendants' version of the assault was the correct one, whereas there was evidence that defendants were in the wrong throughout, and the jury, therefore, had the law stated to them with only a partial and contracted view of the evidence. This method of charging a jury has been disapproved by us. Where a phase of the evidence is presented to the jury, both contentions in regard to it should be given, otherwise it might cause the jury to give undue weight and significance to the one stated. The very question was discussed in Jarrett v. Trunk Co.,
As to the defendant W. G. Stokes, we need not discuss any of the other exceptions, but we will briefly refer to one piece of evidence. W. F. Stokes was permitted to testify that he went to assist his father, because he heard of threats made by plaintiff, and also knew of them. The testimony was competent to show his motive, or reason, for going to the place, when the affray occurred, but it should have been confined within its proper limits, and to the only purpose for which it was evidently offered, as otherwise it may have prejudiced the plaintiff upon the defendants' pleas of self-defense. Ordinarily, when evidence is competent for one purpose, but not for another, the party objecting should make his objection special, directing it to the incompetent part of the question, or of the answer, as the case may be. It seems here to have been offered only for a competent purpose, and it does not appear that it was otherwise used. We will have to apply Rule 27 of this Court (
As to the defendant W. F. Stokes, we are of the opinion that the judge erred in stating that the burden of proof was upon the plaintiff, as W. F. Stokes admitted that he assaulted the plaintiff, and this admission shifted the burden to him.
We therefore conclude that there should be a new trial as to both defendants for the errors stated by us, and for that reason the verdict will be set aside, and the case will proceed further in the court below according to law.
New trial.