#### STATE v. THEODORE LUCAS.

(Filed 29 October, 1913.)

1. Homicide — Murder—Self-defense.

Self-defense may not be successfully maintained where the prisoner has wrongfully assaulted the deceased or provoked a fight resulting in the latter’s death.

2. Same — Unprovoked Assault — Necessity to Kill — Trials—Ques-

tions for Jury.

Where an assault is unprovoked and made with the intent and present ability to kill, the person assaulted is not required to show that he endeavored to withdraw from the conflict before making the necessary resistance to protect his life or save himself from great bodily harm, before taking the life of his assailant, though it is otherwise if the assault is not felonious, for then he is required to retreat to the wall, as far as consistent with his own safety; and in order to establish self-defense in either case, the necessity to kill is required to be shown; but in the first instance it is to be determined by the jury in view of the fact that the assailed may stand his ground, and in the other, in view of the fact that it is required that he show that ,he had retreated as far as consistent with his own safety.

3. Instructions — Murder—Self-defense.

In this case it is held that the judge’s erroneous instruction upon the doctrine of self-defense on a trial for murder was not cured by construing it with a former portion of his charge, such former portion referring in general terms to the doctrine of self-defense as being a killing from necessity, and it is in the part objected to that he lays down the rule on the subject for - the jury’s guidance, and it is the only place he intends or professes to do it.

Appeal by defendant from Ferguson, J., at May Term, 1913, of CUMBERLAND.

Indictment for murder. ' On the trial below it was proved that on 15 March, 1912, in Cumberland County, the prisoner, Theodore Lucas, shot the deceased, Gilbert McDougal, with a pistol, inflicting wounds from which he shortly died.

There was evidence on part of the State tending to show that at the time there was altercation between the prisoner *472and deceased, wben tbe latter was seen to "put bis band on tbe prisoner’s shoulder, wben tbe latter drew bis weapon and fired tbe shots which resulted fatally, and there was no adequate provocation or legal excuse for tbe homicide on tbe part of tbe ' defense.

Tbe prisoner, witness in bis own behalf, testified in part as follows: “I am tbe defendant in this action. I shot Gilbert MoDougal. When I shot him, be came up to me, be did, and asked me what was that about me sending for him not to come up there. He was a married man, and I bad done discussed tbe matter, and said they just couldn’t be together so much, and I was tbe same as her brother. He made threats that be , was going to get drunk, and what be was' going to do to me. When I shot him1 be was making towards me with a knife. He caught my arm. I was trying to keep him from striking me, and was running backwards, and tbe first time I shot him I shot myself through tbe arm. He struck at me and caught and pulled me this way, and I shot myself through tbe arm. He run me ten or fifteen steps after be was shot three times, and tbe last one be said: ‘You damn son of a bitch, you better run. If I get you I will kill you.’ ”

There was other testimony from eye witnesses of tbe occurrence, tending to support this statement and tending to show that tbe homicide was committed by tbe prisoner in bis necessary self-defense. There was evidence also to tbe effect that a knife was found near tbe deceased wben be fell, one witness saying when so found it was shut, and another that it was open.

Tbe court being of opinion that there was no evidence to justify a conviction of murder in tbe first degree, tbe case was submitted on murder in tbe second degree, manslaughter, or excusable homicide.

There was verdict, Guilty of murder in second degree. Judgment, and prisoner excepted and appealed.

Attorney-General BicTcett and Assistant Attorney-General Gal-vert for the State.

Shaw & McLem for defendant.

*473Hoke, J.,

after stating the ease: After charging the jury correctly as to murder in the second degree and manslaughter, the court below, in reference to the prisoner’s claim of self-defense, stated the rule as follows: “But if you are satisfied he was without fault at the time, that he did not enter into the quarrel willingly, that he did not enter into the fight maliciously, but that, having entered into the fight, he quit it and went as far as he could with safety, and was followed by the deceased and then pushed to the'wall, and shot and killed the deceased, then he would be acting in self-defense”; and to this the prisoner duly excepted.

It is held for law in this State that when an unprovoked and murderous assault is made on a citizen, he is not required to retreat, but may stand his ground, and take the life of the assailant if it is necessary to do so to save himself from death or great bodily harm. S. v. Hough, 138 N. C., 663; S. v. Blevins, 138 N. C., 668; S. v. Dixon, 75 N. C., 275.

In the Hough case the doctrine is stated as follows:

> “If an assault be committed under such circumstances as to naturally induce the defendant to believe that the deceased was capable of doing him great bodily harm, and intended to do it, then the law will excuse the killing, because'any man who is not himself legally in fault has the right to save his own life, or to prevent enormous bodily harm to himself.”

> “4. There is a distinction between an assault with felonious intent and assault without felonious intent; in the former a person attacked is under no obligation to fly, but may stand his ground, and kill his adversary, if need be; in the latter, he may not stand his ground and kill his adversary if there is any way of escape open to him.”

In Blevins’ case, speaking to the position, the Court said: “It has been established in this State by several well considered decisions that where a man is without fault, and a murderous assault is made upon him — an assault with intent to kill — he is not required to retreat, but may stand his ground, and if he kill his assailant, and it is necessary to do so in order to save his own life or protect his person from great bodily harm, it is *474excusable homicide, and will be so held (S. v. Harris, 46 N. C., 190; S. v. Dixon, 75 N. C., 275; S. v. Hough, ante, 663); this necessity, real or apparent, to be determined by tbe jury on tbe facts as tbey reasonably appeared to him. True, as said in one or two of tbe decisions, this isi a doctrine of rare and dangerous application. To have tbe benefit of it, the assaulted party must show tbat be is free from blame in tbe matter; tbat tbe assault upon him was with felonious purpose, and tbat be took life only when it was necessary to protect himself. It is. otherwise in ordinary assaults, even with deadly weapon. In such case a man is required to withdraw if be can do so, and to retreat as far as consistent with bis own safety. S. v. Kennedy, 91 N. C., 572. In either ease be can only kill from necessity. But, in the one, be can have tbat necessity determined in view of tbe fact tbat be has a right to stand bis ground; in tbe other, be must show as one feature of the necessity tbat be has retreated to tbe wall.”

It will be noted from these citations (and tbey .are in accord with tbe doctrine prevailing here) tbat when one is subjected to an unprovoked assault, felonious or otherwise, be is not always required to quit tbe combat in order to maintain tbe position of self-defense. As we have seen, if tbe assault is unprovoked and with intent to kill, tbe person may stand bis ground; and if an ordinary assault, be must retreat to tbe wall, tbat is, withdraw as far as safety permits. This principle of requiring one to quit tbe fight in order to maintain self-defense obtains only when tbe person who slays another has provoked tbe dispute or entered into it unlawfully.”

In tbe first part of this excerpt, therefore, tbe court was correct in bolding tbat in order to establish self-defense tbe prisoner must be without legal fault in entering upon the difficulty; but, having said this, and' on tbe facts in evidence, be committed error in imposing on tbe prisoner, as be did, tbe further1 burden of showing be “quit the -fight ” went as far as he could with safety, and was followed by deceased, and then, being-pushed to tbe wall, be shot and killed tbe deceased. •

*475It is urged for the State that while this direction, when standing alone, may be subject of criticism, it should not be held for reversible error, because in the charge as a whole the position of self-defense has been fairly' presented. We are fully mindful of this wholesome rule for construing a judge’s charge, which has been approved in several of our recent decisions, but are not at liberty to adopt the suggestion of the learned counsel in the present instance. While his Honor in a former part of the charge made one reference in general terms to the doctrine of self-defense as being a killing, from necessity, it is in this present portion that he lays down the rale on the subject for the jury’s guidance, and it is the only place he intends or professes to do it. There is nothing in any other portion of the charge that corrects or tends to correct or qualify the rale as stated, and, in our opinion, it amounts to reversible error, entitling the prisoner to a new trial. It is so ordered.

New trial.