State v. . Bryant
197 S.E. 530
N.C.
1938
Check Treatment
Winborne, J.

The record discloses error affecting substantive rights of the defendant which necessitates a trial de novo.

Defendant excepts, inter alia: (1) To the failure of the court to declare and explain the law arising on the evidence'in the case. (2) To that portion of the charge, after stating the principle with respect to the right of a man, who without fault himself is murderously assaulted, to stand his ground and fight in self-defense, in which the court summed up as follows: “In order to have the benefit of this principle of law, the defendant must show that he was free from blame in the matter, that the assault upon him was with felonious intent, with intent to kill, and that he took the life only when it was necessary or apparently so to protect himself.”

*756 Tbe statement of law is correct as applied in tbe case of a felonious assault. But, baving so charged, it was tbe duty of tbe court to go further and explain tbe principle of law applicable in case of non-felonious assault. Tbe jury might have found that a felonious assault was not made, but that a nonfelonious assault, even with a deadly weapon, was made.

In S. v. Hough, 138 N. C., 663, 50 S. E., 709, Brown, J., said: “There is a distinction made by tbe text writers in criminal law which seems to be reasonable and supported by authority, between assaults with felonious intent and assaults without such intent. ‘In tbe latter tbe person assaulted may not stand bis ground and kill bis adversary if there is any way of escape open to him, though be is allowed to repel force by force and give blow for blow. In tbe former class, where tbe attack is made with a murderous intent, tbe person attacked is under no obligation to fly, but may stand his ground and kill bis adversary, if need be.’ 2 Bishop’s Criminal Law, sec. 6333, and cases cited. It is said in 1 East Pleas of tbe Crown, 271, ‘A man may repel force by force in defense of bis person, habitation, or property against one who manifestly 'intends or endeavors by violence to commit a felony such as murder, rape, burglary, robbery, and tbe like, under either. In these eases be is not obliged to retreat, but may pursue bis adversary until be has secured himself from all danger, and if be kill him in so doing it is called justifiable self-defense.’ The American doctrine is to tbe same effect. See S. v. Dixon, 75 N. C., 275.” S. v. Glenn, 198 N. C., 79, 150 S. E., 663.

In tbe case of S. v. Blevins, 138 N. C., 668, 50 S. E., 763, speaking to tbe subject, Holte, J., said: “It has been established in this State by several well-considered decisions that where a man is without fault, and a murderous assault is made upon him — an assault with intent to kill— be is not required to retreat, but may stand bis ground, and if be kill bis assailant and it is necessary to do so in order to save bis own life or protect bis person from great bodily barm, it is excusable homicide, and will be so held (S. v. Harris, 46 N. C., 190; S. v. Dixon, supra; S. v. Hough, ante, 663); this necessity, real or apparent, to be determined by tbe jury on tbe facts as they reasonably appeared to him. True, as said in one or two of tbe decisions, this is a doctrine of rare and dangerous application. To have tbe benefit of it, tbe assaulted party must show that be is free from blame in tbe matter; that tbe assault upon him was with felonious purpose, and that be took life only when it was necessary to protect himself. It is otherwise in ordinary assaults, even with deadly weapons. In such case a man is required to withdraw if be can do so, and to retreat as far as consistent with bis own safety. S. v. Kennedy, 91 N. C., 572. In either ease, be can only kill from necessity. But, in tbe one, be can have that necessity deter *757 mined in view of the fact that he has a right to stand his ground; in the other, he must show as one feature of the necessity that he has retreated to the wall.”

“When the judge assumes to charge and correctly charges the law upon one phase of the evidence, the charge is incomplete unless it embraces the law as applicable to the respective contentions of each party, and such failure is reversible error,” Brown, J., in Real Estate Co. v. Moser, 175 N. C., 255, 95 S. E., 498; S. v. Bost, 189 N. C., 639, 127 S. E., 926.

The failure of the court to instruct the jury on this substantive feature of the case arising on the evidence is prejudicial. This is true even though there is no special prayer for instruction to that effect. S. v. Merrick, 171 N. C., 788, 88 S. E., 501; S. v. Bost, supra; S. v. Thornton, 211 N. C., 413, 190 S. E., 758; School District v. Alamance County, 211 N. C., 213, 193 S. E., 31; S. v. Robinson, ante, 273, 195 S. E., 824.

3. Defendant excepts to that portion of the charge which reads: “The means of force which a person is justified in using in self-defense depends upon the circumstances of the attack and must in no case exceed the bounds of mere defense and prevention, but if the one attacked uses such means of force only as is necessary or as reasonably appears to be necessary to repel the attack and save himself from death and great bodily harm, and death of his assailant ensues, it is justifiable and excusable homicide.”

The error here is in the clause “as reasonably appears to be necessary.” The reasonableness of the apprehension of the necessity to act and the amount of force required must be judged by the jury upon the facts and circumstances as they appeared to the defendant at the Lime of the killing.

The charge is in the present tense, and might have been understood by the jury to mean as the facts and circumstances appeared at the time of the trial. Being susceptible of that construction, we must assume that the jury so understood it.

In S. v. Barrett, 132 N. C., 1005, 42 S. E., 832, it is stated: “The defendant’s conduct must be judged by the facts and circumstances as they appeared to him at the time he committed the act, and it should be ascertained by the jury, under evidence and proper instructions of the court, whether he had a reasonable apprehension that he was about to lose his life or to receive enormous bodily harm. The reasonableness of the apprehension must always be for the jury, and not the defendant, to pass upon, but the jury must form its conclusion from the facts and circumstances as they appeared to the defendant at the time he committed the alleged criminal act.” (Italics ours.) Thus it appears that the jury must determine the reasonableness of the facts and circum *758 stances as they appeared to the party charged at tbe time of tbe killing. S. v. Blackwell, 162 N. C., 672, 78 S. E., 316; S. v. Marshall, 208 N. C., 127, 179 S. E., 427; S. v. Terrell, 212 N. C., 145, 193 S. E., 161; S. v. Robinson, supra; S. v. Mosley, ante, 304, 195 S. E., 830, and cases cited.

Tbe court bad correctly stated tbe law in other portions of tbe charge. However, “it is well settled that when there are conflicting instructions upon a material point, a new trial must be granted. As tbe jury are not supposed to be able to determine when tbe judge states tbe law correctly and when incorrectly. . . .We must assume that in passing upon tbe motion for new trial tbe jury were influenced in coming to a verdict by that portion of tbe charge which was erroneous.” Edwards v. R. R., 132 N. C., 99, 43 S. E., 585; S. v. Mosley, supra.

As tbe case goes back for new trial for tbe errors treated, other exceptions upon which tbe defendant relies need not be considered. S. v. Stephenson, 212 N. C., 648, 194 S. E., 81; S. v. Robinson, supra.

For tbe reasons stated, tbe defendant is entitled to a

New trial.