16 N.C. App. 307 | N.C. Ct. App. | 1972
Defendant assigns as error the failure of the court to allow his motion to dismiss as of nonsuit. The evidence was sufficient
Defendant brings forward only one exception to the evidence. To the solicitor’s question: “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 objected in this form: “Object to what he was going to do. Just tell what happened.” The court overruled 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 responsive. “It is well settled in this jurisdiction that defendant’s objection should have been accompanied by a motion to strike the objectionable statement from the record if he 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 portion 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, contends 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 an unlawful homosexual act would not, standing alone, deprive him of his right of self-defense. We think defendant’s position is well taken.
Ordinarily the words “without fault” and “free from blame” are words of such common usage that their use with respect to defendant’s conduct in bringing on the controversy would not require definition or further explanation. Instructions to the jury using these words, or similar words of identical import, have frequently been approved in this jurisdiction. See State v. Jennings, 276 N.C. 157, 171 S.E. 2d 447 (1970).
“Likewise, it is our opinion that conduct towards another must be evaluated within the framework of the surroundings, circumstances and parties, including their previous relations and the then existing state of their feelings. However, the fact that a person has previously been guilty of immoral conduct or wrongful acts, or has had 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 on the difficulty before he can have the benefit of the doctrine of self-defense ordinarily means that he himself must not have precipitated the fight by assaulting the decedent or by inciting in him the reaction which caused the homicide. Usually, whether the defendant is free from 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 case, 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 amplified 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 that 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 emphasize that this opinion must be read in connection with the facts of the case.” Jennings, p.163.
We think the facts 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 clarified the charge in order to relate the phrases “without fault” and
Defendant, therefore, must be given a
New trial.