State v. Hodges

255 N.C. 566 | N.C. | 1961

HiggiNS, J.

The trial court in the charge to the jury accurately reviewed the evidence and correctly instructed the jury as to the law governing murder and manslaughter. The court likewise charged as to the right of each defendant to defend his or her self. However, the court failed to charge or refer to any conditions or circumstances under which Burlie Gosnell might fight in defense of her daughter, or L. L. Hodges in defense of his brother’s wife.

The defendants’ evidence, heretofore quoted in the statement of facts, tends to show that Burlie Gosnell entered the fight by reason of the screams of her daughter for help and in an effort to defend her. She did not claim that she entered the difficulty in defense of herself. Likewise, the evidence tends to show that L. L. Hodges shot in defense of his sister-in-law and not in defense of himself. These are permissible inferences from the defendants’ evidence. The credibility of the evidence is for the jury — not for the court. Hence the State’s evidence is omitted.

The defendants’ evidence required the court to charge the jury that if Dorothy Mae Gosnell was assaulted by the deceased or by the deceased and his brother Suard, acting in concert, under such circumstances as entitled Dorothy to fight in self-defense, then the mother, Burlie Gosnell, would have an equal right to defend her daughter. The mother’s right was coextensive with the right of the daughter to defend herself. State v. Anderson, 222 N.C. 148, 22 S.E. 2d 271. “Non constat the defendant relied upon his right to defend his wife and not upon his right to kill.in his own necessary defense, the court reiterated the charge that the .jury must convict unless they found the defendant was fighting- in his own defense — a plea not made, and unsupported by evidence. ... As the evidence favorable to the defendant tends to indicate that defendant acted in defense of his wife, instructions as to his right to defend himself are inapplicable and misleading.” (Citing State v. Lee, 193 N.C. 321, 136 S.E. 877.)

Likewise this Court held--in State v. Mosley, 213 N.C. 304, 195 S.E. 830: “1. That one may kill in defense of himself or his family when necessary to prevent death or great bodily harm. ... 2. That one may kill in defense of himself or his family when not actually necessary to prevent death or great bodily harm, if he believes it to be necessary and has a reasonable ground for the belief.”

The foregoing rules apply to the right of Burlie Gosnell to defend her daughter and likewise to the right of L. L. Hodges to defend his brother’s wife who was a member of his household. State v. Cloud, 254 N.C. 313, 118 S.E. 2d 789.

The learned judge inadvertently failed to charge the jury with respect to the rights of the defendants to defend the members of their families. The failure so to charge is the subject of Assignment of Error No. 15. The assignment is sustained. The defendants are entitled to a

New trial.