59 S.E.2d 635 | N.C. | 1950
STATE
v.
HERBIN.
Supreme Court of North Carolina.
*637 Attorney General Harry McMullan, and Assistant Attorney General T. W. Burton, for the State.
P. W. Glidewell, Sr., Reidsville, and Worth Henderson, Greensboro, for defendant.
DENNY, Justice.
The sole exception brought forward and argued as required by Rule 28 of the Rules of Practice in the Supreme Court, 221 N.C. 562, is the exception to the following portion of his Honor's charge: "Now the court charges you if you find from the evidence in this case that the defendant did point this pistol at James Dawkins, that he then made the first assault because that would be an assault with a deadly weapon within the meaning of the law."
The court had previously charged the jury correctly on the law of self-defense as it applies to one who is in a place where he has a right to be, in his home or in his place of business. The jury was then instructed that if the defendant brought on the difficulty, "before he could claim that he was fighting in self-defense and be justified in that, he would have to withdraw from the difficulty and let his adversary know he had withdrawn from the difficulty before he could kill in self-defense." As a general proposition of law, this instruction is correct. State v. Bryson, 200 N.C. 50, 156 S.E. 143. But the instruction which followed, and of which the defendant complains, eliminated, for all practical purposes, any consideration by the jury of the evidence upon which the defendant relied in support of his plea of self-defense, and left the jury to determine only the question as to whether or not the defendant pointed a pistol at the deceased. The court did not apply the law as to the legal rights of the defendant while in his home and place of business to defendant's evidence if the jury should find his version of what took place was true. State v. Pennell, 224 N.C. 622, 31 S.E.2d 857; State v. Anderson, 222 N.C. 148, 22 S.E.2d 271; State v. Roddey, 219 N.C. 532, 14 S.E.2d 526; State v. Glenn, 198 N.C. 79, 150 S.E. 663; 26 Am. Jur. 264. His contentions were given and the law on the right of self-defense adequately and correctly stated as an abstract proposition. But the court did not explain the law arising upon the evidence in the case, bearing on the defendant's plea of self-defense, except in the manner referred to herein. G.S. § 1-180; Lewis v. Watson, 229 N.C. 20, 74 S.E.2d 484; State v. Spruill, 225 N.C. 356, 34 S.E.2d 142; State v. Baker, 222 N.C. 428, 23 S.E.2d 340; State v. Roddey, supra.
It is error simply to state the contentions of a party and not declare and explain the law applicable to the facts which the jury may find from the evidence offered in support of such contentions. Lewis v. Watson, supra; Nichols v. Champion Fibre Co., 190 N.C. 1, 128 S.E. 471.
We think the exception is well taken and that the defendant is entitled to a more adequate charge in this respect.
For the reason stated, there must be a
New trial.