27 N.C. App. 301 | N.C. Ct. App. | 1976
The defendant assigns as error the denial of his motion for judgment as of nonsuit. Obviously, the State tried defendant for manslaughter on the theory that defendant aided and
Manslaughter is the unlawful killing of a person without malice and without premeditation and deliberation. State v. Rummage, 280 N.C. 51, 185 S.E. 2d 221 (1971) ; State v. Duboise, 279 N.C. 73, 181 S.E. 2d 393 (1970) ; State v. Baldwin, 152 N.C. 822, 68 S.E. 148 (1910). A person is guilty of manslaughter when the unlawful killing occurs while he is “under the influence of passion or in the heat of blood produced by adequate provocation . . . . ” State v. Wynne, 278 N.C. 513, 518, 180 S.E. 2d 135, 139 (1971).
The State offered evidence to show that Respass had been struggling with Ward, that Ward lost his gun, that Respass picked up the gun, and that Respass shot Ward as he fled. When the evidence is considered in the light most favorable to the State, it is sufficient to show that Respass Spencer was guilty of manslaughter.
To prove that defendant aided or abetted Respass in the unlawful killing, the State must show that in some way defendant advised, procured, encouraged, or assisted his brother in the commission of the crime. State v. Cassell, 24 N.C. App. 717, 212 S.E. 2d 208 (1975), cert. denied 287 N.C. 261, 214 S.E. 2d 433 (1975) ; State v. Beach, 283 N.C. 261, 196 S.E. 2d 214 (1973). As stated in State v. Hargett, 255 N.C. 412, 415, 121 S.E. 2d 589, 592 (1961) :
“A person aids when, being present at the time and place, he does some act to render aid to the actual perpetrator of the crime though he takes no direct share in its commission; and an abettor is one who gives aid and comfort, or either commands, advises, instigates or encourages another to commit a crime.” State v. Holland, 234 N.C. 354, 358, 67 S.E. 2d 272, 274; State v. Johnson, 220 N.C. 773, 776, 18 S.E. 2d 358. “ . . . Mere presence, even with the intention of assisting in the commission of a crime cannot be said to have incited, encouraged or aided the perpetration thereof, unless the intention to assist was in some way communicated to him (the perpetrator) . ” State v. Hoffman, 199 N.C. 328, 333, 154 S.E. 314, 316. However,*306 there is an exception. “ . . . when the bystander is a friend of the perpetrator, and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone may be regarded as an encouragement, and in contemplation of law this was aiding and abetting.” State v. Holland, supra.
Accord, State v. Cassell, supra at 721. In addition to the relationship of defendant to the actual perpetrator, other circumstances to be considered include the motive tempting defendant to assist in the crime, presence of defendant at the time and place of the crime, and conduct of defendant both before and after commission of the crime. State v. Birchfield, 235 N.C. 410, 70 S.E. 2d 5 (1952) ; State v. Cassell, supra.
In the instant case, the State offered evidence tending to show (1) that defendant was present at the time of the killing; (2) that defendant and Respass were brothers; (3) that earlier in the day defendant had been slapped and threatened by Ward; (4) that defendant had threatened to kill Ward several times on 9 September 1972; (5) that defendant and his brother had discussed some plan earlier that night; and (6) that defendant had been shot by Ward just previous to the killing and defendant had run across the street to get a “jack iron.” The jury could find that Respass knew all this. In addition, immediately after the fatal shooting, defendant beat Ward with the iron while Ward was lying on the floor. This evidence, when taken in the light most favorable to the State is sufficient to allow the jury to find that defendant instigated, encouraged, aided or advised his brother in the unlawful killing of Ward. See State v. Lesley Spencer, 18 N.C. App. 499, 197 S.E. 2d 232 (1973), where on a former appeal this court held that the evidence was sufficient to require submission of the case to the jury on the theory that Lesley Spencer aided his brother, Respass Spencer, in the second degree murder of Ward. (The former appeal in the case of Respass Spencer for that murder is reported at 18 N.C. App. 323, 196 S.E. 2d 573 (1973).) This assignment of error is overruled.
Defendant also assigns as error certain instructions to the jury on the right of self-defense and the availability of that defense to one who voluntarily enters a fight. In charging the jury on the right of Respass Spencer to act in defense of himself or defendant, the court instructed the jury that for them to find that Respass acted in self-defense they must find that “he
This identical instruction was attacked and found to be erroneously applied to the evidence of the cases giving rise to the former appeals of Respass Spencer and Lesley Spencer reported as cited supra.
A general rule with regard to self-defense is that the defense is not available to one who enters a fight voluntarily because he would thereby be an aggressor. State v. Watkins, 283 N.C. 504, 196 S.E. 2d 750 (1973); State v. Davis, 225 N.C. 117, 33 S.E. 2d 623 (1945). But, the crux of defendant’s argument is that although Respass voluntarily entered the fight he was not an aggressor because one may come to the defense of members of his family, when that member of the family would be justified in defending himself. State v. Hodges, 255 N.C. 566, 122 S.E. 2d 197 (1961) ; State v. Anderson, 222 N.C. 148, 22 S.E. 2d 271 (1942) ; State v. Respass Spencer, supra.
From the evidence here presented, the jury could find that when defendant, Lesley Spencer, was initially attacked by Ward who struck him with the pistol and then shot him in the leg, he was justified in defending himself. By the same token, when Respass saw the fight between Ward and his brother, the jury could find, he was justified in entering the fight. Although such entry was voluntary, Respass would not be an aggressor since it was in defense of his brother. State v. Respass Spencer, supra.
In the present case, as before in State v. Respass Spencer, supra, the court’s unqualified statement that one who voluntarily enters a fight is an aggressor, coupled with his failure to declare and explain that one is not an aggressor if he voluntarily enters a fight in defense of his brother, is erroneous. For the court’s failure to properly declare and explain the law arising on the evidence, the defendant is entitled to a new trial.
We do not discuss the additional assignments of error, since they are not likely to occur at the next trial.
New trial.