State v. . Kennedy

Apr 28, 1915
Versions:169 N.C. 326
85 S.E. 42
1915 N.C. LEXIS 219
HoKE, J.,

after stating tbe case: In S. v. Brittain, 89 N. C., 481, and in reference to defendant’s first exception, this Court beld: “Where a prisoner makes an assault upon A. and is reassaulted so fiercely tbat tbe prisoner cannot retreat without danger of bis life, and tbe prisoner kills A.: TIeld, tbat tbe killing cannot be justified upon tbe ground of self-defense. Tbe first assailant does tbe first wrong and brings upon himself the necessity of slaying, and is therefore not entitled to a favorable interpretation of tbe law.” And, in support of tbe position, Ashe, J., delivering tbe opinion, quotes from Lord Hale, as follows: “If A. assaults B. first, and upon tbat assault B. reassaults A., and tbat so fiercely tbat A. cannot retreat to tbe wall or other non ultra without danger of bis life, and then kills B., this will not be interpreted to be se defendendo, but to be murder or simply homicide, according to tbe circumstances of tbe case; for otherwise we should have all tbe cases of murder or manslaughter, by way of interpretation, turned into se defendendo. Tbe party assaulted, indeed, shall, by tbe favorable interpretation of tbe law, have tbe advantage of this necessity to be interpreted as a flight, to give him tbe advantage of se defendendo, when tbe necessity put upon him by tbe assailant makes bis flight impossible; but be tbat first assaulted bath done the first wrong, and brought upon himself this necessity, and shall not have tbe advantage of bis own wrong to gain tbe favorable interpretation of tbe law, tbat tbat necessity wbicb be brought upon himself should, by tbe way of interpretation, be accounted a flight to save himself from tbe guilt of murder or manslaughter.”

Tbe same position is stated by tbe Court in Garland’s case, 138 N. C., 675, as follows: “It is tbe law of this State tbat where a man provokes a fight by unlawfully assaulting another, and in tbe progress of tbe fight *330 kills bis adversary, be will be guilty of manslaughter at least, tbougb at tbe precise time of tbe homicide it was necessary for tbe original assailant to kill in order to save bis own life. This is ordinarily true where a man unlawfully and willingly enters into a mutual combat with another and kills bis adversary. In either case, in order to excuse tbe killing on tbe plea of self-defense, it is necessary for tbe accused to show that be 'quitted tbe combat before tbe mortal wound was given, and retreated or fled as far as be could with safety, and then, urged by mere necessity, kills bis adversary for tbe preservation of bis own life.’ ” Foster’s Crown Law, p. 276. Tbe same author says, on page 277: “He, therefore, who, in case of a mutual conflict, would excuse himself on tbe plea of self-defense, must show that before tbe mortal stroke was given be bad declined any further combat and retreated as far as be could with safety, and also that be killed bis adversary through mere necessity and to avoid immediate death. If be failetb in either of these circumstances be will incur tbe penalty of manslaughter,” citing also tbe above passage from Lord Hale and Brittain’s case, supra,, in support and illustration of tbe principle.

It may be well to note that tbe term “quitting tbe combat,” within tbe meaning of these decisions, does not always and necessarily require- that a defendant should physically withdraw therefrom. .If tbe counter attack is of such a character that be cannot do this consistently with safety of life or limb, such a course is not required; but before tbe right of perfect self-defense can be restored to one who has wrongfully brought on a difficulty, and particularly where be has done so by committing a battery, be is required to abandon tbe combat in good faith and signify this in some way to bis adversary. Tbe principle here and tbe basic reason for it is very well stated in case of Stoffer v. The State, 15 Ohio St., 47: “There is every reason for saying that tbe conduct of tbe accused relied upon to sustain such a defense must have been so marked in tbe matter of time, place, and circumstance as not only to clearly evince tbe withdrawal of tbe accused in good faith from tbe combat, but also as fairly to advise bis adversary that bis danger has passed and to make bis conduct thereafter tbe pursuit of vengeance rather than measures taken to repel tbe original assault.” And when, as heretofore shown, tbe counter assault is so fierce that tbe original assailant cannot comply with this requirement, then, in tbe language of Lord Sale, “He that first assaulted bath done tbe first wrong and brought upon himself this necessity, and shall not have tbe advantage of bis own wrong to gain tbe favorable interpretation of tbe law, that that necessity which be brought on himself should, by way of interpretation, be accounted a flight to save himself from murder or manslaughter.”

Tbe doctrine as stated has been applied or recognized as sound in principle in well considered cases here and elsewhere and is given also in *331 text-books of approved excellence. S. v. Pollard, 168 N. C., 116; S. v. Dove, 156 N. C., 653; S. v. Kennedy, 91 N. C., 572; Parker v. The State, 88 Ala., 4; S. v. Silas Darling, 202 Mo., 150; S. v. Smith, 37 Mo. App., 137; S. v. Hawkins, 18 Ore., 476; Kuney v. The People, 108 Ill., 519; S. v. Benham, 23 Iowa, 154; 1 McLean Crim. L., see. 309; Clark’s Crim. L., p. 183; 25 A. and E., pp. 270-271.

In 1 Hawkins Pl. Cr., p. 87, tbe learned author states tbe position in even stronger terms, as follows (cb. 11, sec. 7) : “According to some good opinions, even be wbo gives another tbe first blow, in a sudden quarrel, if be afterwards do what be can to avoid killing him, is not guilty of felony. Yet such a person seems to be too much favored by this opinion, inasmuch as tbe necessity to which be is at last reduced was at first so much owing to bis own fault.”

Tbe charge of bis Honor, then, was in strict accord with tbe doctrine as it obtains in this jurisdiction, and, this being true, we may not approve tbe argument urged upon us by tbe learned counsel, that a man wbo wrongfully brings on a fight may maintain tbe position of perfect self-defense because, at tbe precise time of tbe homicide, be was “sorely pressed” and could not abandon tbe combat with any proper regard for bis safety, citing Ingold's case, 49 N. C., 217. According to tbe testimony, as it has been evidently accepted by tbe jury, bis client, “armed with a deadly weapon, wrongfully began tbe difficulty by slapping tbe deceased in tbe face, and be never at any time after that ceased tbe combat or gave any sign of doing so. Tbe statement in bis own testimony that be said, “Get off me, boys,” two or three times, and then, “Get off me, or I’ll shoot you off,” presents him in no such attitude as tbe law requires to restore bis right of perfect self-defense, and while, according to bis own account, be was being “sorely pressed” at tbe precise time of the killing, it was a necessity brought about by bis own wrong, and, in our opinion, under tbe law and tbe testimony, be has been properly convicted.

True, there are numbers of decisions on this subject, and by courts of high repute, that tbe requirement that one in tbe wrong at tbe beginning shall cease tbe combat in good faith and signify this to bis adversary before tbe right of self-defense is restored to him, should only apply when tbe original assault wos felonious, or at least of a character importing menace of death or great bodily barm; but in many of these tbe person indicted bad been convicted of the offense of murder and tbe courts were dealing chiefly with tbe right to a new trial of that supreme issue, and may not have been specially attentive to tbe right of self-defense. This was, perhaps, true in Ingold's case, cited by counsel; but to tbe extent that Ingold's case gives countenance to tbe principle that one wbo has wrongfully commenced a fight may maintain tbe position of perfect *332 self-defense because, at tbe time, be is “sorely pressed,” and without having given any intimation of his purpose to abandon the combat, the same is not in accord with our later decisions, and may be considered as disapproved. The case of Foutch v. State, 95 Tenn., 711, reported in 45 L. R. A., 687, and S. v. Gordon, 191 Mo., 114, reported in 109 Am. St. Reports, are to the effect that mere opprobrious or insulting words, though resulting in a difficulty, should not, of themselves, be held to deprive a man of the right of self-defense; decisions that are not apposite to the facts presented in this record and which may not, in all cases and necessarily, antagonize the principles we approve in the disposition made of the present appeal.

On the second exception the prayer of defendant in reference to the dying declarations is taken, in exact terms, from the opinion in S. v. Williams, 67 N. C., pp. 13-14. An examination of the case, however, will disclose, as 'suggested in the argument of the State’s counsel, that the learned judge, in excluding certain declarations, was stating in general terms the reasons for receiving such declarations in evidence and as a caution to courts in reference to their admissibility, and was not intending to lay down any special formula in which the caution should be expressed in a charge to the jury. In the present case the judge did caution the jury, reminding them that the declarations were not made under oath nor at a time when deceased could have been subjected to cross-examination, and instructed the jury that “having been made in the fear of impending death and after hope of life was gone, the law says they may be given such weight, if the jury sees fit to do so, as they would have received if they had been made under sanction of an oath. The law says that no superstitious effect is to be given a statement because it is a dying declaration.”

While these declarations are to be weighed with caution, and the judge should so tell the jury, the way in which the caution should be expressed is, to a great extent and very properly, left to the discretion of the trial judge, ánd in this instance the charge of his Honor is not dissimilar to the form approved in S. v. Whitson, 111 N. C., 395.

There has been no reversible error made to appear, and the judgment of the court is affirmed.

No error.