85 S.E. 42 | N.C. | 1915
After stating the case: In S. v. Brittain,
The same position is stated by the Court in Garland's case,
It may be well to note that the term "quitting the combat," within the meaning of these decisions, does not always and necessarily require that a defendant should physically withdraw therefrom. If the counter attack is of such a character that he cannot do this consistently with safety of life or limb, such a course is not required; but before the right of perfect self-defense can be restored to one who has wrongfully brought on a difficulty, and particularly where he has done so by committing a battery, he is required to abandon the combat in good faith and signify this in some way to his adversary. The principle here and the basic reason for it is very well stated in case of Stoffer v. The State,
The doctrine as stated has been applied or recognized as sound in principle in well considered cases here and elsewhere and is given (331) also in text-book of approved excellence. S. v. Pollard,
In 1 Hawkins Pl. Cr., p. 87, the learned author states the position in even stronger terms, as follows (ch. 11, sec. 7): "According to some good opinions, even he who gives another the first blow, in a sudden quarrel, if he afterwards do what he can to avoid killing him, is not guilty of felony. Yet such a person seems to be too much favored by this opinion, inasmuch as the necessity to which he is at last reduced was at first so much owing to his own fault."
The charge of his Honor, then, was in strict accord with the doctrine as it obtains in this jurisdiction, and, this being true, we may not approve the argument urged upon us by the learned counsel, that a man who wrongfully brings on a fight may maintain the position of perfect self-defense because, at the precise time of the homicide, he was "sorely pressed" and could not abandon the combat with any proper regard for his safety, citing Ingold's case,
True, there are numbers of decisions on this subject, and by courts of high repute, that the requirement that one in the wrong at the beginning shall cease the combat in good faith and signify this to his adversary before the right of self-defense is restored to him, should only apply when the original assault was felonious, or at least of a character importing menace of death or great bodily harm; but in many of these the person indicted had been convicted of the offense of murder and the courts were dealing chiefly with the right to a new trial of that supreme issue, and may not have been specially attentive to the right of self-defense. This was, perhaps, true in Ingold's case, cited by counsel; but to the extent that Ingold's case gives countenance to the principle that one who has wrongfully commenced a fight may maintain the position of perfect self-defense because, at the time, he is (332) "sorely pressed," and without having given any intimation of his purpose to abandon the combat, the same is not in accord with our later decisions, and may be considered as disapproved. The case of Foutchv. State,
On the second exception the prayer of defendant in reference to the dying declarations is taken, in exact terms, from the opinion in S. v.Williams,
While these declarations are to be weighed with caution, and the judge should so tell the jury, the way in which the caution should be expressed is, to a great extent and very properly, left to the discretion of the trial judge, and in this instance the charge of his Honor is not dissimilar to the form approved in S. v. Whitson,
There has been no reversible error made to appear, and the judgment of the court is affirmed.
No error.
Cited: S. v. Crisp,
(333)