State v. WilsonState v. Wilson
- Reporters:
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- Before:
- Morris
Dеfendant assigns as error the failure of the court to allow his motion to dismiss as of nonsuit. The evidence was sufficient *310for submission of defendant’s guilt to the jury, and this assignment of error is overruled.
Dеfendant brings forward only one exception to the evidence. To the solicitor’s quеstion: “What did he do with the knife ?” the witness answered: “He cut me on my shoulder and head and this arm too. And about that time Ray got up from right here and went toward him, to help me out.” Defendant objеcted in this form: “Object to what he was going to do. Just tell what happened.” The court ovеrruled the objection. On appeal defendant argues the answer was not responsive and was an impermissible statement by the witness as to deceased’s intent and mental processes. The question was not objectionable. True the answer, in part, is not resрonsive. “It is well settled in this jurisdiction that defendant’s objection should have been accоmpanied by a motion to strike the objectionable statement from the record if hе deemed it incompetent and prejudicial.” State v. Gooding, 196 N.C. 710, 711, 146 S.E. 806 (1929); Highway Commission v. Black, 239 N.C. 198, 79 S.E. 2d 778 (1954). There was no motion to strike any pоrtion of the answer. Additionally, upon cross-examination, the witness gave the same testimony without objection or motion to strike. This assignment of error is without merit.
Defendant also assigns as error the refusal of the court to give instructions tendered in writing by defendant and, in addition, cоntends that prejudicial error appears in certain portions of the charge as given.
Defendant contends that he was entitled to have the court instruct the jury that the fact that he had previously, even in the immediate past, been guilty of wrongful acts or of аn unlawful homosexual act would not, standing alone, deprive him of his right of self-defense. We think dеfendant’s position is well taken.
Ordinarily the words “without fault” and “free from blame” are words of suсh common usage that their use with respect to defendant’s conduct in bringing on the contrоversy would not require definition or further explanation. Instructions to the jury using these words, or similar wоrds of identical import, have frequently been approved in this jurisdiction. See State v. Jennings, 276 N.C. 157, 171 S.E. 2d 447 (1970).
*311In State v. Jennings, supra, at pp. 162-163, Justice Branch, writing for the majority of the Court, said:
“Likewise, it is our opinion that conduct towards another must be evaluated within the framework of the surroundings, circumstances and partiеs, including their previous relations and the then existing state of their feelings. However, the faсt that a person has previously been guilty of immoral conduct or wrongful acts, or has hаd past difficulties with the decedent, does not, standing alone, deprive a defendant of his right of self-defense. 40 C.J.S., Homicide, § 119, at 990. The requirement that a defendant must be free from fault in bringing оn the difficulty before he can have the benefit of the doctrine of self-defense оrdinarily means that he himself must not have precipitated the fight by assaulting the decedent оr by inciting in him the reaction which caused the homicide. Usually, whether the defendant is free frоm blame or fault will be determined by his conduct at the time and place of the killing. Yet the fault in bringing on a difficulty which will deprive him of the right of self-defense is not confined to the precise time of the fatal encounter, but may include fault so closely connected with the difficulty in time and circumstances as to be fairly regarded as operating to bring it on. 40 Am. Jur. 2d, Homicide, § 145, at 434.”
In that cаse, defendant had been engaged for a period of years in conduct with deceased’s wife which, in the eyes of an average juror, would fix him with blame and fault. There the court held that under the particular facts of that case, the court should have amplifiеd and explained the meaning of “without fault” and “free from blame” when defendant specifically requested such charge. In so doing, the Court said, “We wish to make it crystal-clear thаt we do not intend to overrule the line of cases which have used the words’ ‘without fault’ or ‘free from blame’ .without further definition when there was no request for further instruction. We emphasizе that this opinion must be read in connection with the facts of the case.” Jennings, p.163.
We think the faсts in the case before us require the application of the rule of Jennings. We, therefore, conclude that the court, upon request of counsel, should have further clarifiеd the charge in order to relate the phrases “without fault” and *312“free from blame” to defendant’s conduct at the time of the homicide and to dispel any ideа that defendant’s improper or unlawful conduct prior to the homicide, standing alone, would preclude his right of self-defense.
Defendant, therefore, must be given a
New trial.
Judges Bkock and Hedrick concur.