{
  "id": 11273868,
  "name": "STATE v. GREEN",
  "name_abbreviation": "State v. Green",
  "decision_date": "1904-03-16",
  "docket_number": "",
  "first_page": "658",
  "last_page": "663",
  "citations": [
    {
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      "cite": "134 N.C. 658"
    }
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
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    "name_long": "North Carolina",
    "name": "N.C."
  },
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    {
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    {
      "cite": "123 N. C., 753",
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      "reporter": "N.C.",
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      "cite": "35 Am. Dec., 135",
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      "reporter": "Am. Dec.",
      "opinion_index": 0
    },
    {
      "cite": "23 N. C., 125",
      "category": "reporters:state",
      "reporter": "N.C.",
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        2104290
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      "case_paths": [
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    {
      "cite": "32 N. C., 214",
      "category": "reporters:state",
      "reporter": "N.C.",
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        1972563
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  "last_updated": "2023-07-14T20:04:54.590902+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. GREEN."
    ],
    "opinions": [
      {
        "text": "CoNNOR, J.\nThe sole question presented upon the appeal is whether the Court was correct in instructing the jury that in any phase of the defendant\u2019s testimony he was guilty. This excludes from our consideration the testimony in behalf of the State. We are of the opinion that the case should have been submitted to the jury with proper instructions, to the end that the jury should say what portion of the defendant\u2019s testimony was true and what portion of it was untrue. His testimony, taken in one aspect, certainly establishes his guilt; it is equally true that taken in another aspect he was not guilty. It is the province of the jury to say what portion of the testimony they will believe and what portion they will reject. Taking his testimony alone, there is nothing to show that he went there for the purpose of provoking or engaging in a difficulty with the State\u2019s witness. As he states the transaction, Flowers hit Hudson, Hudson threw a missile at him, and he was advancing on him, when he struck Hudson with the bottle. He says, \u201cI had to strike him to keep him from striking me. lie was advancing on me when I struck him, but had nothing in his hands.\u201d It is true that he says that he threw the bottle because Hudson threw the pot at him. It was the province of the jury to reconcile these statements, or reject that which they find untrue. If the jury shall find this to be a correct statement of the transaction, and shall further find that he had reasonable ground to apprehend that he would be stricken, that the witness was advancing upon him, and that he used no more force than was necessary, or reasonably appeared to be necessary under the circumstances, to prevent the assault, he would not be guilty. State v. Davis, 23 N. C., 125, 35 Am. Dec., 135. If, on the other hand, the jury should find that he threw the bottle at the witness because he threw the pot at him, he would undoubtedly be guilty; or, if they should find that he did not have reasonable ground to apprehend that he would be stricken, or having such reasonable ground he used excessive force, that is, more force than Avas necessary, or reasonably appeared to be necessary, he would be guilty. These are questions for the jury and not for the Court to decide.\nIf the jury find the transaction to be as testified by the State\u2019s Avitness, he would undoubtedly be guilty; but, for the purpose of passing upon the defendant\u2019s exception, we must take his testimony as being true, and exclude the consideration of the State\u2019s evidence. AVe would suggest that this Court has held that the formula used by his Honor to the jury, that \u201cif they believed the evidence they should convict the defendant,\u201d is open to criticism. State v. Barrett, 123 N. C., 753; Sossamon v. Cruse, 133 N. C., 470.\nSection 413 of The Code prescribes the duty of the Judge in charging the jury: \u201cPie shall state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon.\u201d We feel sure that the error of the learned and careful Judge who tried this case was an inadvertence. The testimony strongly tended to show the defendant\u2019s guilt, and doubtless so impressed his Honor.\nIn the administration of the criminal law, it is wise to observe the \u201clandmarks,\u201d and preserve the well-defined rights and duties of the Court and jury.\nThe defendant\u2019s exception to his Honor\u2019s charge must be sustained, and for the errors complained of he is entitled to a\nNew Trial.",
        "type": "majority",
        "author": "CoNNOR, J."
      },
      {
        "text": "MONTGOMERY, J.,\ndissenting.. I regret to have to entet my dissent to the opinion of the Court, but after a careful examination of the evidence I am so clearly of the opinion that his Honor correctly instructed the jury as to their duty that I am constrained to do so. The State introduced evidence to the effect that the prosecuting witness, Mac Hudson, a negro, was employed in a barroom conducted by a negro in the city of New Bern, as a clerk, and that about 11 o\u2019clock one Saturday night in July, 1903, the defendant Thomas Green, together with a man by the name of Blowers, both white men, entered the barroom and called for Hudson; that Hudson came into the room, whereupon Flowers demanded of him to know what he had been saying about the defendant Green, and that instantly a dispute arose between Blowers and Pludson, which resulted in Hudson being knocked down by Flowers. There was evidence, too, that the defendant Green threw a bottle, partly filled with benzine, which struck Hudson on the forehead. The injury from the blow was a severe one. Prior to the throwing of the bottle by Green there had been no words between Green and Pludson and no demonstration by Iiudson against Green, and that Green cursed Hudson before he struck him with the bottle. Green was examined as a witness in his OAvn behalf, and said that Pludson went behind the counter and got the pot and threw it at him, and that he struck Hudson with the bottle. He said further that he had to strike Hudson to keep Hudson from striking him, and that Hudson was drinking, and advancing on him. On his cross-examination, however, he said that Hudson was fifteen or twenty feet off and behind the counter when he, the witness, threw the bottle at him, and that he threw the bottle at him because Hudson had thrown the pot at him. In the conclusion of his cross-examination he admitted, too, that he thought Hudson had intended to strike Flowers with the measuring pot when he threw it. The Court instructed the jury that if they believed the evidence they should convict the defendant.\nFrom a careful examination of the evidence in the case, and from the testimony, especially of the defendant, it appears that even if Hudson had .ever intended \u2019to or actually did have trouble with Green, the defendant, that he (Green) provoked it and was therefore himself guilty. But his own cross-examination shows that ITudson was behind his counter, fifteen or twenty steps from the defendant at the time when the defendant threw the bottle of benzine.\nThe defendant, as we have seen, admitted, too, that he thought Pludson, when he threw the measuring pot intended to strike Flowers who had knocked Hudson down. The testimony of the defendant in respect to the reason which be gave for bis assault on Hudson, viz., that be threw the bottle of benzine at Hudson because Hudson bad thrown the measuring pot at him, cannot be a justification or excuse for bis act. The law does not justify an assault by way of retaliation or revenge for a blow previously received. State v. Gibson, 32 N. C., 214. It appears further that Green did not deny that be cursed Hudson before any demonstration or word bad been made or spoken by Hudson, and, as we have seen, the defendant admitted at the end of bis cross-examination that be thought Hudson threw the measuring pot at Flowers.\nUpon the whole matter, as I see it, there were no variant aspects of the evidence to be submitted to the jury. If it was true, the defendant was guilty in law; otherwise, he was not. His Honor expressed no opinion as to whether the jury ought or ought not to believe the evidence. He simply said, \u201cIf you believe the evidence, the defendant is guilty.\u201d",
        "type": "dissent",
        "author": "MONTGOMERY, J.,"
      }
    ],
    "attorneys": [
      "Robert B. Gilmer, Attorney-General, for the State.",
      "B. B. Ward, for the defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. GREEN.\n(Filed March 16, 1904).\n1. ASSAULT AND BATTERY \u2014 Evidence\u2014Self-defense\u2014Questions for \u25a0Jury.\nThe trial judge should not instruct that the defendant is guilty of assault and battery under his own evidence, if the jury could find from any phase of his evidence that lie acted in self-defense.\n2. INSTRUCTIONS \u2014 Judge\u2014The Code, see. J,IS \u2014 Trial.\nThe trial judge should instruct \u201cthat if the jury find from the evidence\u201d and not \u201cif they believe the evidence.\u201d\nMontgomery, J., dissenting.\nIhdictMBNT against Thomas Green, heard by Judge Frederick Moore and a jury, at November Term, 1903, of the Superior Court of CRAyen County.\nThe defendant was indicted for assault and battery upon Mack Hudson. There was testimony on the part of the State tending to show that the prosecuting witness was employed in a barroom as a clerk, and that about 11 o\u2019clock at night the defendant, together with one Flowers, entered the barroom and called for the witness (Hudson) ; that he came into the room, and immediately Flowers demanded of him to know what he had been saying about the defendant. Thereupon a dispute arose between EloAvers and the AA-itness, which Avas folloAved by EloAvers striking Hudson Avith his fists and knocking him doAvn.\nThe defendant testified as follows,: \u201cFlowers hit Hudson. He, Hudson, went behind the counter and got a pot and threw it at me, and I struck him with a bottle. I had to strike him to keep him from striking me. Hudson was drinking.\u201d On cross-examination he said: \u201cAfter Hudson threw the pot at me, he was advancing on me. He was as far from me as the post at the corner of the bar, fifteen or twenty feet, behind the counter. I threw the bottle, partly filled with benzine, at him. He had thrown the pot at me. I threw the bottle at him because he threw the pot at me. I think he would have thrown something else at me. He was advancing on me when I struck him, but had nothing in his hand. Flowers had knocked Hudson down. I think Hudson intended to strike Flowers with the measuring pot which he threw.\u201d This was all the evidence offered by the defendant.\nThe Court instructed the jury that if they believed the evidence they should convict the defendant.\nThe defendant excepted and appealed from the judgment pronounced upon a verdict of guilty.\nRobert B. Gilmer, Attorney-General, for the State.\nB. B. Ward, for the defendant."
  },
  "file_name": "0658-01",
  "first_page_order": 696,
  "last_page_order": 701
}