51 S.E.2d 895 | N.C. | 1949
The defendant, Ernest Anderson, was charged by indictment with feloniously assaulting, wounding and seriously injuring the State's witness, Clarence Holcombe, with a deadly weapon with intent to kill contrary to G.S.
The court left it to the jury to determine whether the defendant was guilty of the felonious assault charged in the indictment, or guilty of a nonfelonious assault with a deadly weapon, or not guilty. There was a verdict of guilty of an assault with a deadly weapon, judgment of imprisonment was imposed thereon, and defendant appealed, assigning errors. The court charged the jury as follows: "One is permitted to fight in self-defense or kill in self-defense when it is necessary for him to do so in order to avoid death or great bodily harm." This instruction was not qualified elsewhere in the charge, and constitutes one of the defendant's assignments of error.
Manifestly, the instruction denied to the accused the right "to fight in self-defense or kill in self-defense" in the absence of an actual necessity for so doing even though he may have honestly and reasonably believed from the circumstances surrounding him at the time that the prosecuting witness was about to take his life or to do him great bodily harm. Thus, it erroneously limited the right of self-defense to actual or real danger alone. S. v. Glenn,
The excerpt from the charge is objectionable in another view.
It is undoubted law that a person cannot excuse taking the life of an adversary upon the ground of self-defense unless the killing is, or reasonably appears to be, necessary to protect himself from death or great bodily harm. S. v. Hand,
Since the evidence justified such action, the court properly charged the jury that the defendant might be acquitted of the felonious assault and battery with intent to kill charged in the indictment, and convicted of an assault of lower degree, namely, an assault with a deadly weapon which is a misdemeanor. G.S.
It is quite conceivable that a verdict of acquittal would have been returned if the jury had been properly instructed with respect to the right of an accused to defend himself again nonfelonious assaults. The court made its instruction on the law of self-defense applicable to *56 defendant's conduct irrespective of whether he acted with intent to kill. In final result, it charged the jury that one is never privileged by law to employ force in self-protection unless he is threatened with death or great bodily harm.
The instruction is in direct conflict with S. v. Dixon,
The law does not compel any man to submit in meekness to indignities or violence to his person merely because such indignities or violence stop short of threatening him with death or great bodily harm. If one is without fault in provoking, or engaging in, or continuing a difficulty with another, he is privileged by the law of self-defense to use such force against the other as is actually or reasonably necessary under the circumstances to protect himself from bodily injury or offensive physical contact at the hands of the other, even though he is not thereby put in actual or apparent danger of death or great bodily harm. S. v. Maney,
Since the erroneous instruction on the law of self-defense was prejudicial to defendant, the verdict and judgment is vacated, and the defendant is awarded a
New trial.