State v. . Kennedy, 85 S.E. 42

State v. . Kennedy

85 S.E. 42 | N.C. | 1915

After stating the case: In S. v. Brittain, 89 N.C. 481, and in reference to defendant's first exception, this Court held: "Where a prisoner makes an assault upon A. and is reassaulted so fiercely that the prisoner cannot retreat without danger of his life, and the prisoner kills A.: Held, that the killing cannot be justified upon the ground of self-defense. The first assailant does the first wrong and brings upon himself the necessity of slaying, and is therefore not entitled to a favorable interpretation of the law." And, in support of the position,Ashe, J., delivering the opinion, quotes from Lord Hale, as follows: "If A. assaults B. first, and upon that assault B. reassaults A., and that so fiercely that A. cannot retreat to the wall or other non ultra without danger of his life, and then kills B., this will not be interpreted to bese defendendo, but to be murder or simply homicide, according to the circumstances of the case; for otherwise we should have all the cases of murder or manslaughter, by way of interpretation, turned into sedefendendo. The party assaulted, indeed, shall, by the favorable interpretation of the law, have the advantage of this necessity to be interpreted *393 as a flight, to give him the advantage of se defendendo, when the necessity put upon him by the assailant makes his flight impossible; but he that first assaulted hath done the first wrong, and brought upon himself this necessity, and shall not have the advantage of his own wrong to gain the favorable interpretation of the law, that that necessity which he brought upon himself should, by the way of interpretation, be accounted a flight to save himself from the guilt of murder or manslaughter."

The same position is stated by the Court in Garland's case, 138 N.C. 675, as follows: "It is the law of this State that where a man provokes a fight by unlawfully assaulting another, and in the progress of the fight kills his adversary, he will be guilty of manslaughter at (330) least, though at the precise time of the homicide it was necessary for the original assailant to kill in order to save his own life. This is ordinarily true where a man unlawfully and willingly enters into a mutual combat with another and kills his adversary. In either case, in order to excuse the killing on the plea of self-defense, it is necessary for the accused to show that he `quitted the combat before the mortal wound was given, and retreated or fled as far as he could with safety, and then, urged by mere necessity, kills his adversary for the preservation of his own life.'" Foster's Crown Law, p. 276. The same author says, on page 277: "He, therefore, who, in case of a mutual conflict, would excuse himself on the plea of self-defense, must show that before the mortal stroke was given he had declined any further combat and retreated as far as he could with safety, and also that he killed his adversary through mere necessity and to avoid immediate death. If he faileth in either of these circumstances he will incur the penalty of manslaughter, " citing also the above passage from Lord Hale and Brittain's case, supra, in support and illustration of the principle.

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, 15 Ohio St. 47: "There is every reason for saying that the conduct of the accused relied upon to sustain such a defense must have been so marked in the matter of time, place, and circumstance as not only to *394 clearly evince the withdrawal of the accused in good faith from the combat, but also as fairly to advise his adversary that his danger has passed and to make his conduct thereafter the pursuit of vengeance rather than measures taken to repel the original assault." And when, as heretofore shown, the counter assault is so fierce that the original assailant cannot comply with this requirement, then, in the language of Lord Hale, "He that first assaulted hath done the first wrong and brought upon himself this necessity, and shall not have the advantage of his own wrong to gain the favorable interpretation of the law, that that necessity which he brought on himself should, by way of interpretation, be accounted a flight to save himself from murder or manslaughter."

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, 168 N.C. 116; S. v. Dove, 156 N.C. 653; S. v. Kennedy,91 N.C. 572; Parker v. The State, 88 Ala. 4; S. v. Darling, 202 Mo., 150;S. v. Smith, 37 Mo. App. 137; S. v. Hawkins, 18 Ore., 476; Kuney v. ThePeople, 108 Ill. 519; S. v. Benham, 23 Iowa 154; 1 McLean Crim. L., sec. 309; Clark's Crim. L., p. 183; 25 A. and E., pp. 270-271.

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, 49 N.C. 217. According to the testimony, as it has been evidently accepted by the jury, his client, "armed with a deadly weapon, wrongfully began the difficulty by slapping the deceased in the face, and he never at any time after that ceased the combat or gave any sign of doing so. The statement in his own testimony that he said, "Get off me, boys," two or three times, and then, "Get off me, or I'll shoot you off," presents him in no such attitude as the law requires to restore his right of perfect self-defense, and while, according to his own account, he was being "sorely pressed" at the precise *395 time of the killing, it was a necessity brought about by his own wrong, and, in our opinion, under the law and the testimony, he has been properly convicted.

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, 95 Tenn. 711, reported in 45 L.R.A., 687, and S. v. Gordon,191 Mo., 114, reported in 109 Am. St. Reports, are to the effect that mere opprobrious or insulting words, though resulting in a difficulty, should not, of themselves, be held to deprive a man of the right of self-defense; decisions that are not apposite to the facts presented in this record and which may not, in all cases and necessarily, antagonize the principles we approve in the disposition made of the present appeal.

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, 67 N.C. pp. 13-14. An examination of the case, however, will disclose, as suggested in the argument of the State's counsel, that the learned judge, in excluding certain declarations, was stating in general terms the reasons for receiving such declarations in evidence and as a caution to courts in reference to their admissibility, and was not intending to lay down any special formula in which the caution should be expressed in a charge to the jury. In the present case the judge did caution the jury, reminding them that the declarations were not made under oath nor at a time when deceased could have been subjected to cross-examination, and instructed the jury that "having been made in the fear of impending death and after hope of life was gone, the law says they may be given such weight, if the jury sees fit to do so, as they would have received if they had been made under sanction of an oath. The law says that no superstitious effect is to be given a statement because it is a dying declaration." *396

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, 111 N.C. 395.

There has been no reversible error made to appear, and the judgment of the court is affirmed.

No error.

Cited: S. v. Crisp, 170 N.C. 790;S. v. Evans, 177 N.C. 569, 571; S. v.Coble, 177 N.C. 592; S. v. Finch, 177 N.C. 602; S. v. Robinson,181 N.C. 553; S. v. Baldwin, 184 N.C. 791, 792; S. v. Moore, 185 N.C. 639;S. v. Bost, 189 N.C. 643; S. v. Bost, 192 N.C. 3; S. v. Hardee,192 N.C. 536; S. v. Bryson, 203 N.C. 730; S. v. Koutro, 210 N.C. 147; S.v. Robinson, 213 N.C. 281; S. v. DeMai, 227 N.C. 664; S. v. Correll,228 N.C. 31; S. v. DeBerry, 228 N.C. 148; S. v. Church, 229 N.C. 722.

(333)