Roberson v. . Stokes
106 S.E. 151
N.C.
1921
Check Treatment
WalkeR, J.,

after stating tbe 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 f the ease 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., 144 N. C., 299, where it was said that although it be not error generally to refrain from giving-instructions unless asked to do so, yet care must be taken when the judge thinks proper to instruct the jury upon a phase of the evidence and to expound the law in relation thereto, not only to state it correctly, but to state the law as applicable to the respective contentions of each party upon such phase of the evidence. Having undertaken to tell the jury how they should answer that issue if they found such facts according to plaintiff’s contention it was manifestly incumbent upon the court to state the defendant’s contentions in respect to such phase of the evidence and to instruct the jury how to answer the issue should they sustain such contention. S. v. Austin, 79 N. C., 626; Burton v. R. R., 84 N. C., 197; Bynum v. Bynum, 33 N. C., 636; S. v. Wolf, 122 N. C., 1081. The phase mentioned by his Honor was flatly denied by the plaintiff, and a very different complexion given to it by him. The judge’s illustration, based, as it was, on the assumption that plaintiff was the sole aggressor, and that "W. Gr. Stokes did nothing to bring on the fight, but was illegally assaulted by the plaintiff and knocked down, was not justified by the evidence, as there was plenty of evidence to show that it was not true, but that the defendants were the aggressors, W. Gr. Stokes having attempted to attack the plaintiff with a brick, and that the latter acted in self-defense, and that the other defendant wrongfully and unlawfully joined in the attack upon him, having no just or legal ground for his intervention, which was simply voluntary and gratuitous on his part. It was therefore required, under the principle stated in Jarrett v. Trunk Co., supra, and the cases therein cited, that the judge should have stated both sides "of the evidence bearing on that particular phase. Such an instruction was peculiarly required, under the circumstances of this case, and the incompleteness of the one given, in the respect indicated, may have turned the scales against the plaintiff, and probably did. What the judge did say afterwards was not sufficient to cure the error. -The instruction also was too broad, because it leaves out of consideration the necessity for the interference *63 of the son, which, is a question for the jury, and apparently omits any reference to excessive force. It was held in S. v. Johnson, 75 N. C., 174: “The proposition is true that the wife has the right to fight in the necessary defense of the husband, the child in defense of his parent, the servant in defense of the master, and reciprocally; but the act of the assistant must have the same construction in such cases as the act of the assisted party should have had if it had been done by himself; for they are in a mutual relation one to another. Although the law respects the human passions, yet it does not allow this interference as an indulgence of revenge, but merely to prevent injury. The son, therefore, is allowed to fight only in the necessary defense of the father; and to excuse himself he must plead and show that Shipwash would have beaten his father had not he interfered. 3 Bl., 3, and note; 1 Hale Pl. Cr., 484; Bac. Ab., Master and Servant, P. There was evidence in the case that the father and Shipwash were engaged in a fight upon equal terms, and it not appearing which was the aggressor, the law presumes that they were fighting by mutual consent, and were both guilty. The son, therefore, had no right to make the assault.” This question is fully discussed by Justice Allen in S. v. Greer, 162 N. C., at p. 649, and quoting from Wharton on Homicide, sec. 521, he says: “The general rule, as ordinarily stated, is that a brother or other relative assisting another in resisting a wrongful act directed against the latter can use no more force than the person he assists would be entitled to use, and that interference to protect a relative is not justified where the relative was the aggressor in the original difficulty. A person has a right to use violence in defense of another only when the imperiled person would have been justified in using it in his own defense. Both must have been free from fault in bringing on the difficulty.” And further, Stanly v. Com., 9 Am. St. Rep. (Ky.), 306, is quoted as follows:. “Not only, however, may he do this, but another may do it for him. This other person, in such a case, steps into the place of the assailed, and there attaches to him not only the rights, but also the responsibilities of the one whose cause he espouses. If the life of such person be in immediate danger, and its protection requires life for life, or if such danger and necessity be reasonably apparent, then the volunteer may defend against it, even to the extent of taking life, provided the party in whose defense he acts was not in fault.” The son could do only what his father could rightfully do, and must be judged by his rights and responsibilities, “because,” as Hale said, “they are in a mutual relation one to another.” The jury must find the facts, including the necessity of intervention by the son, and whether he kept within his privilege. This instruction stated the question hypothetically, which is forbidden. There was evidence that the father not only entered into the fight willingly, which *64 made it an affray in tbe best view for him and tbe son, but that be started tbe figbt, and was tbe aggressor. It bas been said by us that hypothetical instructions should not be indulged in, as they proceeded upon tbe assumption of facts. S. v. Collins, 30 N. C., 407; S. v. Benton, 19 N. C., 196; Johnson v. Bell, 74 N. C., 355.

As to tbe defendant W. Gr. Stokes, we need not discuss any of tbe other exceptions, but we will briefly refer to one piece of evidence. W. F. Stokes was permitted to testify that be went to assist bis father, because be beard of threats made by plaintiff, and also knew of them. Tbe testimony was competent to show bis motive, or reason, for going to tbe place, when the affray occurred, but'it should have been confined within its proper limits, and to tbe only purpose for which it was evidently offered, as otherwise it may have prejudiced tbe 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 (164 N. C., 438), requiring counsel who objects to evidence which is competent for one purpose but not for another, to specify the ground of his objection, or to ask the judge to restrict it within its proper limits.

As to the defendant W. E. Stokes, we are of the opinion that the judge erred in stating that the burden of proof was upon the plaintiff, as W. E. 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.