107 S.E. 131 | N.C. | 1921
There were facts in evidence for the State tending to show that on 22 October, 1920, the defendant, Lucius Robinson, his brothers, Noah and Fred, and two nephews, John and Martin Robinson, were going to Monroe, N.C. in a Ford automobile. That Noah Robinson, the deceased, and defendant began a quarrel in the car. That Lucius got on the ground and "after the word damn was used" commenced firing, inflicting on Noah a mortal wound from which he died some time that night.
There was other testimony to the effect that the five men were going to Monroe in the automobile and Fred, one of the brothers, became sick and it was decided best to return. That Lucius wished to go on and *553 got out of the car, and after some angry words between him and Noah, the deceased, defendant started walking to Monroe. That, wishing to induce Lucius to go back with them, John, who was driving, turned the car and backed it up the road after Lucius. Passing him about three steps, Noah, the deceased, said to Lucius, "G___ d___ you, get in this car and go home." Lucius made no effort to get in and Noah drew his pistol and said, "Damn you, I will kill you if you are the last brother I've got." Noah drew his pistol just as he said "Damn you, I'll kill you if you are the only brother I've got," and at that time the shooting began. (This witness said he did not know which fired first.) And in the shooting, Noah received a mortal wound from which he died that night as stated.
During the trial, when defendant was testifying as a witness in his own behalf, after admitting that he had shot Noah, he was asked whether at the time he fired he believed Noah was about to shoot him. On objection the question and answer were excluded. The answer would have been that the witness believed the deceased was going to kill him. This same question, substantially, was put to the witness in different forms and both question and answer excluded, as follows:
"State, Mr. Robinson, whether or not you would have shot Noah unless you had thought he was about to shoot you."
Again, "When you saw him with a pistol in his hand and he told you to get in the car, what did you think?"
Further, "You may go ahead and tell his Honor and the jury, Mr. Robinson, when your brother Noah drew his pistol and told you to get in the car what, if anything, did you believe he was going to do?"
Another, "Please state whether or not, Mr. Robinson, at the time you fired at your brother you believed he was about to shoot you."
On the facts presented, the principle of self-defense would arise to defendant if, being in no default himself, he killed his brother when he believed and had fair and reasonable ground to believe that he was in danger of death or great bodily harm from his brother's assault. While, in order to sustain this position, defendant must satisfy the jury that he had a fair and reasonable ground to apprehend some harm to himself and it was necessary to kill for his own protection, the evidence excluded by these rulings in some form should have been received as tending to establish defendant's right of self-defense.
The decision is emphasized by the fact that the judge, among other things, instructed the jury that if defendant entered into the fight willingly he would be guilty of manslaughter, at least unless before the killing he abandoned the fight in good faith, and in some way signified his purpose to do so, under the doctrine approved in S. v. Kennedy,
By the ruling of his Honor we are of opinion that the defendant has been erroneously deprived of the right to testify in his own behalf on matter material to his defense, and is entitled to a new trial.
New trial.
