#### STATE v. JOSEPH STEVENS.

(Filed 6 October, 1910.)

Murder — Self-defense—Evidence—Questions for Jury.

Upon a trial foj murder, it is error for tlie trial judge to charge the jury that in no view of the evidence could the prisoner be acquitted upon the ground of self-defense, the testimony of the prisoner tending to show that deceased without provocation cursed and violently assaulted him, a much weaker man, over a dispute they theretofore that day had had, giving in detail an account of an assault which would reasonably make him apprehensive of great bodily harm or of his life, and that the fatal shot was fired when he was unable to get away and in the power of deceased.

Appeal by defendant from O. H. Allen, J., at tbe September Term, 1909, of New HaNoveR.

The facts are sufficiently stated in the opinion.

Indictment for murder of one Shields.

The prisoner was convicted of murder in first degree, and from the judgment of death appeals to the Supreme Court.

Attorney-General and Geo. L. Jones for State.

Herbert McClammy, John D. Bellamy for defendant.

Brown, J.

There are seventy-eight exceptions noted in the voluminous record in the case. The Attorney-General, with characteristic candor, which may well be emulated by all public prosecutors, admits that at least seven of the exceptions are material and well taken, and that the prisoner is entitled to a new trial.

While the opinion of the State’s attorney has much weight with us, it is our practice to examine the record carefully ourselves before setting aside a conviction for crime and directing another trial.

We find that many exceptions as to material matters of proof were well taken, but as those errors may not occur on another trial, it is unnecessary to discuss them.

The principal error committed by the judge below was in holding that in no view of the evidence could the prisoner be *605acquitted upon tbe ground of self-defense and in excluding pertinent evidence competent to support tbat plea.

Tbe evidence of tbe prisoner bimself is sufficient to entitle bim to bave tbat plea submitted to tbe jury under proper instructions. Tbe prisoner testified substantially tbat be and deceased bad a slight dispute in tbe morning and met again in tbe afternoon; tbat be said “good morning” to deceased, wbo at onee, without provocation, cursed prisoner and .attacked bim; pushed bis bead violently against corner of shed; bit bim four times, three times in eye causing excruciating pain and blinding bim; tbat prisoner resisted as best be could, but tbat deceased weighed 200 pounds, was six feet high and was a far more powerful man than prisoner and capable of doing bim serious bodily barm; tbat deceased bad prisoner by tbe neck, and bis nose and mouth jammed against deceased stomach, and was beating bim so severely tbat prisoner was afraid of bis life, and tbat in such condition, unable to get away, be drew bis pistol and shot deceased.

In tbe prisoner’s version of tbe affair be did not enter tbe fight willingly, and is not debarred from tbe plea of self-defense on tbat ground. He was seized by tbe deceased, wbo tbe prisoner testifies was a powerful and desperate man, capable of doing bim great bodily barm, and wbo proceeded to beat tbe prisoner most unmercifully, attempting to knock out bis eyes.

Under such circumstances, whether tbe prisoner used excessive force in repelling tbe assault with bis pistol was one peculiarly for tbe jury.

Tbe innocence of tbe prisoner depends upon whether, from tbe whole testimony, or from tbat of any witness, including bimself, at tbe time of tbe killing, be bimself was without fault and then bad a reasonable ground to believe tbe attempt-of tbe deceased was with tbe design to take bis life or to do bim great bodily barm.

Tbe reasonableness of prisoner’s apprehensions was not a question to be decided by tbe prisoner or by tbe court, but by tbe jury to whom it should bave been submitted with proper instructions. S. v. Harris, 46 N. C., 190; S. v. Dixon, 75 N. C., 277.

New trial.