State v. Greer, 162 N.C. 640

Lead Opinion

Allen, J.

It will be noted that while the abstract proposition as to the right to prevent the commission of a felony is stated in the instructions prayed for, when it is attempted to apply the law to. the facts several alternative propositions arc stated, as “to prevent the destruction of life,” or “the commission of a felony,” or “the infliction of great bodily harm upon Wattie Greer.”

The presiding judge is not required to dissect a prayer for instruction, but may consider it as a whole (Harris v. R. R 132 N. C., 164), and neither of those requested could have been given unless Wallace Greer had the right to kill, if it was reasonably necessary to do so to avoid great bodily harm to Wattie Greer; and under the authorities here and elsewhere, he did not have this right if Wattie Greer was himself in the wrong.

This has been decided to be the law three times in this Court: S. v. Johnson, 75 N. C., 174; S. v. Brittain, 89 N. C., 504; S. v. Cox, 153 N. C., 645.

In the Johnson cáse the Court says: “The proposition is true that the wife has the right to fight in the necessary defense of tbe busband, tbe child in defense of bis parent, tbe servant in defense of bis master, and reciprocally; but tbe act of tbe assistant must bave tbe same construction in sucb cases as tbe act of tbe assisted party should bave bad if it bad been done by himself; for they, are in a mutual relation one to another.” And in tbe Brittain case, in which father and son were indicted, after discussing tbe case of tbe father: “Our conclusions are equally applicable to tbe cause of J. ~W. Brit-tain as to that of bis father, S. P. Brittain, for although a son may fight in tbe necessary defense of bis father, yet in sucb cases tbe act of tbe son must bave tbe same construction as tbe act of tbe father should bave bad if it bad been done by himself; for they are in mutual relations to one another. S. v. Johnson, 15 N. C., 174; 1 Hale P. C., 484.” And in Cox’s case: “In tbe oral argument here tbe prisoner’s cofinsel earnestly contended that tbe prisoner bad tbe right to enter tbe fight to protect bis father; but be only bad that right to tbe same extent and under tbe same circumstances under which tbe father himself could bave used force. If tbe father entered tbe fight willingly, and had not afterwards withdrawn from tbe fight and retreated to tbe wall, or if be bad used excessive force, be would bave been guilty if be bad slain bis assailant. The same principle would apply to, tbe conduct of tbe son, fighting in defense of a father who bad not retreated to tbe wall or if tbe prisoner used excessive force.”

And tbe weight of authority elsewhere is in support of this principle.

In Hale’s PI. Cr., vol. 1, p. 484, tbe author says: “The like law bad been for a master killing in the' necessary defense of his servant, the busband in’tbe defense of the wife, tbe wife of tbe busband, tbe child of tbe parent, or the parent of the child; for tbe act of tbe assistant shall bave tbe same construction in sucb cases as the act of tbe party assisted should bave made if it had been done by himself, for they are in a mutual relation one to another.” And in Whan Horn., sec. 521: “The general rule, as ordinarily stated, is that a brother or other relative assisting another in resisting a wrongful act directed against the latter can use no more force than the person he assists would be entitled to use, and that interference to protect a relative is not justified where the relative was the aggressor in the original difficulty. A person has a right to use violence in defense of another only when the imperiled person would have been justified in using it in his own defense. Both must have been free from fault in bringing on the difficulty.”.

In Stanly v. Com., 9 Am. St. Rep., 306 (86 Ky., 440), the Court, after discussing the right of one to defend himself, says: “Not only, however, may he do this, but another may do it for him. This other person, in such a case, steps into the place of the assailed, and there attaches to him not only the rights, but also the responsibilities of the one whose cause he espouses. 'If the life of such person be in immediate danger and its protection requires life for life, or if such danger and necessity be reasonably apparent, then the volunteer may defend against it, even to the extent of taking life, provided the party in whose defense he acts was not in fault.”

In Wood v. State, 86 Am. St. Rep., 72 (128 Ala., 27): “One who intervenes in a pending difficulty in behalf of a brother and takes the life of the other original combatant, stands in the shoes of the brother, in-respect of fault in bringing on the difficulty, and he cannot defend upon the ground that his brother was in imminent and deadly peril and could not retreat, unless the latter could have defended upon that ground had he killed his assailant. Hence, in such cases it is a material inquiry whether defendant’s brother was in fault in bringing on the difficulty with the deceased.”

In S. v. Giroux, 26 La. Ann., 582: “The next exception was to the ruling of the judge refusing to charge the jury ‘that if from the nature of the assault Giroux had reasonable grounds to believe that the life of his wife was in danger, or some felony was about to be committed upon the person of his wife, and was at the time of the killing being inflicted upon her 'person, then the killing was done in self-defense.’ This would have required the judge to assume the fact, that the assault upon the wife was without provocation, for, if the wife was the aggressor, the killing wftuld not be excusable in self-defense.”

In Surginer v. State, 134 Ala., 125: “The right of one to use violence in defense of another is recognized by the law only where the imperiled person would have been legally justifiable in. using like violence in his own defense, and in no case is a necessity for acting in self-defense regarded as ground for an acquittal unless the person seeking shelter thereunder was free from fault in bringing on the difficulty or had retired therefrom and was thereafter assailed.”

In S. v. Cook, 78 S. C., 254, the circuit judge charged the jury: “Rut if your brother or one near and dear to you provokes a difficulty or puts himself in the wrong and brings it on, the law does not allow you to go there, take , his place and kill that unan and say you are guilty of neither murder nor manslaughter. The law does not give the person who is near and deai; to you the right to provoke a difficulty and then let you come in and kill some one, when he has brought it on himself, and get out of it by your saying he was near and dear to you, and you did the killing on that account'. But if he was without fault in bringing on the difficulty, and the law would justify him in defending himself, you have a right to go in and defend him. But if he brings on the difficulty and you take part, you do it at your own risk; and if he took life under similar circumstances and would have been guilty of murder or manslaughter, and you go in, take his place, and take life under those circumstances, then you are guilty of murder or manslaughter.” This charge was sustained by the Supreme Court, and the Court says, after quoting from Hale and Wharton and citing other authorities in support of the principle: “We have endeavored to show the law as laid down by the circuit judge is firmly established. It is true, the rule may in exceptional cases work hardship; but the Opposite rule would allow the innocent man who had been forced to strike in self-defense to be killed with impunity merely because appearances happened to be against him at the moment a partisan of his antagonist reached the scene of conflict. The duty seems urgent, to enforce rather than relax the rule which admits of no excuse for taking human life except necessity.”

We are, therefore, of opinion that bis Honor properly refused the instructions of the defendant, and that there is no error as to Wallace Greer in the charge given. There are. other exceptions, which we have considered and which require no discussion.

As to Wattie Greer, the court was requested and refused to charge, “that if you believe the evidence in this case, the defendant Wattie Greer is not guilty of homicide, and you are instructed to return a verdict of not guilty as to Wattie Greer.” This prayer should have been given.

There is evidence that Wattie and the deceased were engaged in a voluntary fight, but Wattie did not strike the fatal blow, and there is no evidence that he instigated it. The Attorney-General says in his brief: “We have not found in the record that Wattie Greer had a deadly weapon; any evidence of a conspiracy between Wattie and Wallace, or an understanding or common purpose between them, or any testimony from which the act of Wallace could be imputed to Wattie.”

Although one may have had some difficulty with the deceased, he is not liable for a homicide committed at or about the same time by a third person who was acting independently, without any conspiracy or common design, even though the altercation brought on the fatal encounter, and the third person interfered, to aid him. Title “Homicide,” 21 Cyc., 692; see, also, Wharton on Homicide, secs. 50, 51; S. v. Kendall, 143 N. C., 659; S. v. Goode, 132 N. C., 982; S. v. Finley, 118 N. C., 1161; S. v. Howard, 112 N. C., 859; S. v. Scales, 50 N. C., 420.

There is no error as to Wallace Greer, and a new trial is ordered as to Wattie Greer.

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Dissenting Opinion

BeowN, J.,

dissenting: There is evidence tending to prove that the defendant Wattie Greer and the deceased, Will Fin-ney, engaged in an affray, and that both fought willingly, and that during the affray they clinched and fell, Finney on top, and that Finney drew his knife and stabbed Wattie and had his arm drawn back to stab-him again, when defendant Wallace Greer rushed up and struck Finney on the head with an axe and killed Mm. "Wattie was unarmed, and at tbe time was flat on tbe ground witb Finney on top of him. . Tbe evidence of defendant Wállace tended to prove that Wattie and Finney were having some words about a quarter of a dollar; that Wallace separated them and stopped tbe quarrel; that Wallace turned away and went to bis buggy and started to drive off; that be beard some one exclaim, “Don’t let Finney kill Wat-tie !”; that be turned and saw that Finney was astride of Wat-tie and bad stabbed him and bad bis arm drawn back to stab him again; that Wallace grabbed an axe and struck Finney on tbe bead before Finney could stab Wattie again.

In bis charge bis Honor made tbe guilt of Wallace depend exclusively upon tbe guilt of Wattie, saying: “His guilt or innocence would depend upon tbe question as to whether Wattie was at fault or not; that is, as to whether Wattie engaged in tbe fight willingly or used language calculated or intended to bring on a fight.”

This charge is sustained by our precedents in case tbe jury should find that Wallace entered into tbe fight for tbe purpose of aiding Wattie and defending him in the affray witb Finney.

It is well settled that “though a son may 'fight in tbe necessary defense of bis father, yet tbe act of tbe son must receive tbe same construction as tbe act of tbe father.” S. v. Brittain, 89 N. C., 482; S. v. Johnson, 75 N. C., 175. This is upon tbe ground that these relatives stand in mutual relation one to tbe other, and where one enters into tbe fight to assist in defending the other be becomes bis confederate, and bis act must have tbe same construction as the' act of tbe assisted party. 1 Hale P. C., 484 ; 3 Blackstone, 3, and note; S. v. Medlin, 126 N. C., 1127.

"Although this doctrine has been severely criticised by some courts, I am not disposed to abrogate or qualify it.

But there is a phase of tMs case which bis Honor did not present to tbe jury, and which is not obnoxious to tbe authorities I have quoted.

By several appropriate prayers for instruction tbe defendant Wallace Greer substantially requested tbe court to instruct tbe jury that if he, Wallace Greer, did not enter into the fight for the purpose of assisting and defending Wallace in his contest with Finney, but struck the blow which killed Finney on a sudden emergency with the sole purpose of preventing Finney from committing a felonious homicide, and such blow was necessary for that purpose, then defendant Wallace was justified, and the jury, if they so find, should acquit.

I think this view of the evidence should have been presented to the jury.

The evidence'tends to prove that had Finney succeeded'in stabbing Wattie the second time, and had killed him, he would have been guilty of a felonious homicide, and that the blow administered • by Wallace prevented such result. Wharton on Homicide, sec. 533, thus states the law:

In section 533 it is said: "Bona fide belief by the defendant that a felony is in process óf ■ commission, which can only be averted by the death of the supposed felon, makes the killing excusable homicide, though if such belief be negligently adopted by the defendant, then the killing is manslaughter. ... If A honestly and without negligence on his part believes that B is in- the process .Of committing a felony, which can only be arrested by B’s death, A is excused in killing B.” See, also, sections 537 and 539.

“It is the duty of every man, whether an officer of justice or private citizen, who sees a felony attempted by violence, to prevent it if possible, and in the performance of his duty such person has the legal right to use all means which appear to him as a reasonable man to be necessary to make the resistance and interference effectual, and if the felony cannot be prevented by other means, he is justified in taking life.” 21 Enc. of Law, 207. • ' '•

“A homicide is justifiable when committed by necessity and in good faith- in order to prevent a felony attempted by force or surprise, such as murder ... To justify the killing, however, it most be done in good faith and under an honest and reasonable belief that such felony is about to be committed, and that the killing is necessary in order to prevent its accomplishment, and must be done while the person is in the act of committing' the offense, or after some act done by him showing an evident intent to commit such an offense.” 21 Cyc., 798, 799.

These authorities show that if it appears that a person is about to commit a felony upon another, a third party has the' right to take the life of the one about to commit the felony, if he believes it is necessary in order to prevent the felony, and a man of ordinary firmness and intelligence would have reached the same conclusion.

I think there is a well marked distinction between the case where there is only an intention to prevent a felony and that in which the third party, whether related or not, espouses the cause of one of the participants to defend him in the contest. In the latter case the parties, in law, become confederates and their relation becomes mutual. In the former case a third party is excused, even in taking human life, if the sole motive which prompted him to interfere was to prevent the perpetration of a felonious homicide, and the jury should also be satisfied that the facts, as they appeared to him, were such as might reasonably have convinced a man of ordinary firmness and intelligence that such a felony was about to be committed.

The distinction is recognized by the Supreme Court of Michigan in People v. Curtis, 52 Mich., 617, in which it is held that a dangerous felony may be forcibly prevented by any one who is not himself in the wrong directly or by complicity.

Under the common law the right of mutual defense was given to nearly all the domestic relations, but there is no principle of the common law which denies to a relative the right to prevent the commission of a felonious homicide to the same extent and under the same circumstances as one not related may prevent it.

When one intervenes in a fight for the sole and only purpose to prevent the commission of a felonious homicide, and uses no more force than is reasonably necessary, he'is not considered as fighting in defense of any one, but only to uphold the law of the land and to prevent the destruction of human life. The principle of justification in such case is broader than the mere idea of self-defense. It is founded upon duty to the State and not to an individual. Upon tbe same principle private citizens may arrest'felons to prevent escapes, without warrants. S. v. Bryant, 65 N. C., 327. There can be no doubt that this defense would be open to the defendant Wallace Greer upon the evidence in this case, had he not been the brother of Wattie. The fact that he is his brother-ought not to deprive him of the benefit of it.

Waluer, J., concurs in the dissenting opinion of BeowN, J.

Case Details

Case Name: State v. Greer

Court Name: Supreme Court of North Carolina

Date Published: May 22, 1913

Citation: 162 N.C. 640

Court Abbreviation: N.C.