State v. . Holland
138 S.E. 8
N.C.
1927
Check Treatment
Clarkson, J.

The first law of nature is that of self-defense. The law of this State and elsewhere recognizes this primary impulse and inherent right. One being without fault, in defense of his person, in the exercise of ordinary firmness has a right to invoke this law and kill his assailant, if he has reasonable ground for believing or apprehending that he is about to suffer death or great or enormous bodily harm at his hands. The danger or necessity may be real or apparent. It is for the jury, and not the party setting up the plea, to determine, under all the facts and circumstances, the reasonableness of the grounds for the belief or apprehension of the real or apparent danger or necessity. The mere fact that a man believes or apprehends that he is in present, immediate and imminent danger of death or great bodily harm, is not sufficient to justify the taking of the life of a human being, but there must be reasonable ground for the belief or apprehension — an honest and well-founded belief or apprehension at the time the homicide is committed. S. v. Dixon, 75 N. C., 275; S. v. Turpin, 77 N. C., 473; S. v . Barrett, 132 N. C., p. 1005; S. v. Lipscomb, 134 N. C., p. 689; S. v. Garland, 138 N. C., p. 675; S. v. Lilliston, 141 N. C., p. 857; S. v. Blackwell, 162 N. C., p. 672; S. v. Thomas, 184 N. C., p. 757; S. v. Johnson, 184 N. C., p. 789; S. v. Bost, 192 N. C., p. 1; Horrigan & Thompson, Cases of Self-Defense, p. 968-9.

In S. v. Hand, 170 N. C., at p. 706, it is said: “It is well-settled law that when the killing with a deadly weapon has been proven or admitted, the burden is on the prisoner to show excuse or mitigation. S. v. Gaddy, 166 N. C., 341; S. v. Yates, 155 N. C., 450; S. v. Rowe, ibid., 436; S. v. Simonds, 154 N. C., 197; S. v. Brittian, 89 N. C., 481.”

In S. v. Johnson, 166 N. C., at p. 395, speaking to the question: “This Court said in S. v. Gray, 162 N. C., 612, that ‘One may kill when necessary in defense of himself, his family, or his home, and he has the same right when not actually necessary, if he believes it to be so, and he has a reasonable ground for the belief and in S. v. Kimbrell, 151 N. C., 709, ‘If there was any evidence to go to the jury in support of *719 this contention, then it was for the jury, and not for the court, to pass upon the question of his motive in firing the shots, as well as the reasonableness of the grounds of his apprehension. S. v. Nash, 88 N. C., 618; S. v. Harris, 119 N. C., 861; S. v. Hough, 138 N. C., 663; S. v. Blevins, 138 N. C., 668; S. v. Castle, 133 N. C., 769; S. v. Clark, 134 N. C., 699; S. v. Barrett, 132 N. C., 1005. ”

“One cannot be expected to encounter a lion as he would a lamb.” S. v. Floyd,, 51 N. C., 392; S. v. Williams, 186 N. C. p. 627.

In S. v. Turpin, 77 N. C., at p. 477, it is held: “Where one is drawn into a combat of this nature by the very instinct and constitution of his being, he is obliged to estimate the danger in which he has been placed, and the kind and degree of resistance necessary to his defense. To do this he must consider not only the size and strength of his foe, how he is armed, and his threats, but also his character as a violent and dangerous man. It is sound sense, and we think sound law, that before a jury shall be required to say whether the defendant did anything more than a reasonable man should have done under the circumstances, it should, as far as can he, be placed in the defendant’s situation, surrounded with the same appearances of danger, with the same degree of knowledge of the deceased’s probable purpose which the defendant possessed. If the prisoner was ignorant of the character of the deceased, then the proof of it would have been inadmissible, because his action could not have been influenced by the dangerous character of a man of whom he had no knowledge.” S. v. Matthews, 78 N. C., 523; S. v. Hensley, 94 N. C., 1021; S. v. Rollins, 113 N. C., 722; S. v. Byrd, 121 N. C., 684; S. v. McIver, 125 N. C., 645; S. v. Sumner, 130 N. C., 718; S. v. Blackwell, supra.

In S. v. Hough, 138 N. C., at p. 667-8, it is said: “It is true there is no evidence that the deceased was armed with a deadly weapon, at least none was exhibited, but the evidence does show that the deceased had sent word to the defendant that he intended to kill him, and the defendant had a right to suppose that the deceased was endeavoring to carry out his threat and was prepared to do it. Then, again, the evidence shows there was an enormous disparity in the relative strength and power of the defendant and deceased, the one being a weakly, delicate man of very small stature; the other, in .comparison, being a giant of violent nature, and evidently capable of either killing the defendant or doing him great bodily harm without the aid of a weapon. The defendant was on his own premises, engaged in his peaceful pursuits at the time the deceased advanced on him in a manner giving unmistakable evidence of his purpose to do the defendant bodily harm.”

In S. v. Barrett, 132 N. C., at p. 1010, it is said: “There is a marked difference between an actual necessity for killing and that reasonable *720 apprehension of losing life or receiving great bodily harm, which is all that the law requires of the prisoner in order to excuse the killing of his adversary, and it was just this difference that may have caused the jury to decide against the prisoner upon this most important issue in the case.” S. v. Johnson, 184 N. C., p. 637; S. v. Bush, 184 N. C., p. 778.

With these principles of law well settled in this State, we come to the vital assignment of error of defendant.

Defendant objected and assigned error in the court below striking out the following testimony of the defendant: “I could tell from the appearance of the deceased, Paul Donlcel, when he came in the cafe door and jumped at me that he was mad. I think he was drinking.” We think this evidence was competent.

In S. v. Leak, 156 N. C., at p. 647, this Court, speaking to the subject, said: “The rule applicable to evidence of this character is clearly and accurately stated in McKelvey on Evidence, p. 220 et seq., as follows : ‘The instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals and things, derived from observation of a variety of facts presented to the senses at one and the same time are, legally speaking, matters of fact, and are admissible in evidence. A witness may say that a man appeared intoxicated or angry or pleased. In one sense the statement is a conclusion or opinion of the witness, but in a legal sense, and within the meaning of the phrase ‘matter of fact,’ as used in the law of evidence, it is not opinion, but is one of the class of things above mentioned, which are better regarded as matters of fact. The appearance of a man, his actions, his expression, his conversation — a series of things — go to make up the mental picture in the mind of the witness which leads to a knowledge which is as certain, and as much a matter of fact as if he testified, from evidence presented to his eyes, to the color of a person’s hair, or any other physical fact of like nature. This class of evidence is treated in many of the cases of opinion admitted under the exception to the general rule, and in others as matter of fact' — ‘shorthand statement of fact,’ as it is called. It seems more accurate to treat it as fact, as it embraces only those impressions which are practically instantaneous, and require no conscious act of judgment in their formation. The evidence is almost universally admitted, and very properly, as it is helpful to the jury in aiding to a clearer comprehension of the facts.’ ” Renn v. R. R., 170 N. C., 128; S. v. Spencer, 176 N. C., 709.

Mr. Nash, for the State, in his argument with his usual intellectual honesty admits error, but contends it was harmless. We cannot so hold. The deceased, Paul Donkel, cursed defendant, Glen Holland, and told him, while in jail, “I will get out some time, and when I do I am going *721 to kill you.” Other threats had been made to defendant, and repeated threats made by deceased against defendant’s life had been communicated to him. Defendant had seen deceased cut Ern Julian, and because defendant was subposnaed as a witness deceased “struck me when I was in my ear with Nora Heffner” — “he nearly beat me up.” Defendant knew deceased’s general reputation was bad as being a dangerous and violent man. The appearance of the deceased, as he came in the cafe, under the facts and circumstances of this case, was all important to the defendant. The reasonableness of the ground for his belief or apprehension of danger to life or great bodily harm was for the jury to pass on, but the defendant had a right to state the 'action and appearance of the deceased as he came in the cafe door: (1) he jumped at him, (2) he was mad, (3) thought he was drinking. This was competent evidence and the exclusion prejudicial. Defendant was entitled to the impression made on him with the previous known threats and the knowledge of deceased’s general reputation as a violent and dangerous man, which would indicate to him that he was not going to encounter a lamb. This aspect he was entitled to have considered by the jury in weighing his conduct with the other evidence as to the reasonableness of the grounds of his belief or apprehension that he was about to suffer death or great bodily harm at the hands of the deceased. The probative force was for the jury.

As the case goes back for a new trial, the other exceptions we do not think necessary to pass on. For the reasons given, there must be a

New trial.