#### STATE v. BAILEY JOHNSON.

(Filed 20 May, 1914.)

Homicide — Trials — Self-defense — Evidence — Instructions—Appeal and Error.

Upon a trial for a homicide there was evidence tending to show that the deceased and the prisoner were friendly; that V., at whose home prisoner was living, had several days before the homicide, given the deceased permission to use his horse and buggy, and that during the night the deceased, unknown to the prisoner, took the horse from the pasture to get a prescription filled for a sick member of his family; that the prisoner was awakened and. told some one had stolen the horse, and, arming himself with a gun, went in search of the supposed thief; that soon he heard the horse returning, but did not recognize deceased, who had shaved off; his beard, and called to him to stop, but he kept on riding and called out “Quit that!” “Quit that!” etc.; that prisoner twice fired in the air to cause the rider to stop, and the third and fatal shot was fired because prisoner mistook a medicine bottle, which the deceased “flourished,” for a pistol; and prisoner testified that he fired in apprehension for his own safety. Held, this evidence was sufficient to be submitted to the jury upon the question of whether the defendant reasonably believed, under the circumstances, he was acting' in self-defense, or to save himself from death or great bodily harm; and an instruction that the jury return a verdict of manslaughter was reversible error.

CLARK, C. J., dissenting.

Appeal by defendant from Cline, J., at Fall Terra, 1913, of Avery.

The defendant was indicted for the murder of Roby Carter on 21 July, 1913, and from the judgment rendered on a verdict of manslaughter, he appealed. He was sentenced to four years in the State’s Prison.

*393The deceased was living on a place owned by one Charles Yoncanon, about 1% or 2 miles' from Yoneanon’s residence. The defendant is a boy of about 17 years of age, whose home is in Georgia, and who had been living with the Yoncanons since about 20 April. On the night of the homicide the deceased went to the Yoncanon pasture and took out a horse and rode off with it. Mr. Yoncanon was away and Mrs. Yoncanon was awakened by the slamming of the gate and the noise of the horse’s hoofs. She got up, recognized the horse, but not the man, and .awakened the defendant and told him to go out and see about it. The defendant went to the barn and pasture, discovered that the horse and bridle had been taken, and went over to the house of one Bynum Banner to see if he could learn anything about it. Banner had heard the horse going down the road about thirty minutes before, and while the defendant was there -they heard a horse coming up the road. The defendant went out, and the witness for the State, Bynum Banner, gives the following account of the shooting: “When I heard the horse the second time, defendant left my room. I heard defendant say, ‘Halt there! Throw up your hands!’ three times; then gun fired; 22 rifle. Carter said, 'Quit that.’ Defendant said, 'Halt and throw up your hands!’ Defendant shot second time. Carter said, 'Quit that! Quit that!’ Then gun fired third time, and Carter said, 'Oh, Lordy! You have killed, me.’ I went out; they were walking toward each other. Eoby said, 'Why did you shoot me?’ Defendant said, 'I am sorry that I shot you; but you ought to have told me who you were; you ought to have stopped when I called to you.’ ” Bynum Banner further testified, on being recalled, that the defendant said to him that he thought some one had ridden the horse to get liquor.

There was evidence tending to show that Yoncanon had told the deceased that he might borrow a horse at any time, and when the deceased borrowed the horse on the night he was killed, he did so to get medicine from a doctor for his sick child.

The defendant testified in his own behalf, and the material part is as follows: “I have been living in this country since 20 April, with Mrs. Yoncanon. Am 17 years old. Night of 21 July I had been out late to rehearse; went to bed; been there *394half-hour. Aunt Nollie woke me up; told me she heard gate slam; heard trot of horse; thought it was a certain horse of hers; I got up, went to barn; took rifle with me; searched the pasture; found one of the horses missing; found one of the bridles missing. I went back and told her. She wanted me to go to Bynum Banner’s and see if I could get any information. I went and woke him up. Asked him where his horse was. Told him our horse was gone and one of the bridles missing. ¥e talked a few minutes; heard the horse coming. I walked out in the moonlight to the fence. I looked to see if I could recognize the man with the horse. Could not. I told him to halt and throw up his hands. I had no reason to shoot, but he kept riding, and I shot. Did not shoot to hit him. He said, 'Quit that!’ I hollered to him to halt and throw up his hands again. He was getting a little by me. . He twisted around and had a bottle; I thought it was a nickel-plated pistol. I shot again and he either fell off or jumped off. He said, 'Don’t shoot again; it is Roby.’ I did not shoot to hit him at first, but just thought he would stop. Before he wore mustache; that night he was clean shaven. I asked him why he did not tell me sooner who he was. He said he just pulled on and thought I was 'kidding’ him. The horse belonged to Mr. and Mrs. Yoncanon. He passed from the barn by the house going to the doctor’s. Forks of roads where I shot him, but I could not tell if he intended to turn off at the forks or not. We were entirely friendly. I had given him a shirt the day before. Aunt Nollie told me that the horse had been taken without her permission.” He further testified, on cross-examination: “I had known Roby Carter from April to 21 July. He worked there, but did not handle the horses. He worked a crop, but I plowed the ground for him. The moon was shining, giving light to a certain extent. I was 50 or 60 feet from Roby when I first saw him. Could not identify the horse when I first saw him. Could not tell its color, but judged it by its size and sound. I did not care about the man, but wanted the horse. Can’t tell why I fired the first two shots; had- no reason; fired it with the expectation of him stopping. Had the butt of gun on fence and fired straight up — the *395horse was trotting all the time. I did not shoot to hit him until he flourished the bottle, and I thought it was a nickel-plated pistol.”

Mrs. Nollie Yoncanon testified in behalf of defendant: “Was at home that night with my two little girls and Bailey. My husband was at Elk Park. I was awakened by slamming of gate and heard horse’s hoofs. I got up and recognized the horse, but not the man. I waked Bailey; told him to go to the bam and see if the horse was gone. Pie did so and took this little rifle. I sent him to Bynum Banner’s. No one asked me about the horse. When I got to where Bailey and Roby were, Bailey said, ‘Roby, why did 'you not speak ?’ and Roby said, ‘I was to blame; I ought to have spoken.’ On Friday Roby had a mustache and growth of beard on his face. This day his hair was clipped and he clean shaven, ‘ghostly looking.’ Horse has long, slinging, trot, different from any other horse we ever owned. I told Bailey that some one had stolen Ourly, as I thought, but for him to go to the bam and see.”

His Honor charged the jury, in effect, that if they believed the evidence, the defendant was guilty of manslaughter, at least, and the defendant excepted.

Attorney-General Biclcett and Assistant Attorney-General Calvert for the State.

L. B. Lowe, T. A. Love, and J. W. Ragland for defendant.

AlleN, J.

The charge of his Honor deprived the defendant of the benefit of his plea of self-defense, and if there is any evidence to support the plea, the charge is erroneous.

This Court said in S. v. Gray, 162 N. C., 612, that, “One may kill when necessary in defense of himself, his family, or his home, and he has the same right when not actually necessary, if he believes it tO' be so, and he has a reasonable ground for the belief,” and in S. v. Kimbrell, 151 N. C., 709, “If there was any evidence to go to the jury in support of this contention, then it was for the jury, and not for the court, to pass upon the question of his motive in firing the shots, as well as the reasonableness of the grounds of his apprehension. S. v. Nash, 88 N. C., 618; *396 S. v. Harris, 119 N. C., 861; S. v. Hough, 138 N. C., 663; S. v. Blevins, 138 N. C., 668; S. v. Castle, 133 N. C., 769; S. v. Clark, 134 N. C., 699; S. v. Barrett, 132 N. C., 1005.”

It was also said in S. v. Barrett, 132 N. C., 1007: “In some of the early cases expressions may be found wbicb would seem to indicate that a case of self-defense is not made out unless the defendant can satisfy the jury that he killed the deceased from necessity; but we think the most humane doctrine and the one which commends itself to us as being more in accordance with the enlightened principles of the law is to be found in the more recent decisions of this Court. It is better to hold, as we believe, that the defendant’s conduct must be judged by the facts and circumstances as they appeared to him at the time he committed the act, and it should be ascertained by the jury, under the evidence and proper instructions of the court, whether he had a reasonable apprehension that he was about to lose his life or to receive enormous bodily harm. The reasonableness of his apprehension must always be for the jury, and not the defendant, to pass upon, but the jury must form their conclusion from the facts and circumstances as they appeared to the defendant at the time he committed the alleged criminal act. If his adversary does anything which is calculated to excite in his mind, while in the exercise of ordinary firmness, a reasonable apprehension that he is about to assail him and to take his life or to inflict great bodily harm, it would seem that the law should permit him to act in obedience to the natural impulse of self-preservation and to defend himself against what he supposes to be a threatened attack, even though it may turn out afterwards that he was mistaken; provided, always, as we have said, the jury find that his apprehension was a reasonable one and that he acted with ordinary firmness,” and this was approved in S. v. Blackwell, 162 N. C., 683.

These authorities (and many others to the same effect could be cited) establish the following propositions:

(1) That one may kill in his defense when necessary to prevent death or great bodily harm.

(2) That he may kill, when not necessary, if he believes it to be so and has a reasonable ground for the belief.

*397(3) That the reasonableness of the belief must be judged by the facts and circumstances as .they appeared to the party charged at the time of the hilling.

(4) That the jury, and not the party charged, are to determine the reasonableness of the belief.

(5) That if there is any evidence that the party charged has killed under a reasonable belief that he- is about to suffer death or great bodily harm, and to prevent it, the plea of self-defense must be submitted to the jury.

Applying these principles, we cannot say, as matter of law, there is no evidence of self-defense.

There is evidence tending to prove that the defendant was living at the home of Mrs. Yoncanon; that on the night of the killing he was the only male present at the home; that he wás awakened by Mrs. Yoncanon late at night and told that her horse had been stolen; that he went to the pasture and found a horse and bridle missing; that he went to a neighbor’s in search of the horse, carrying a rifle with him; that while there he heard the horse approaching and went to the road; that he recognized the horse; that he had known the deceased before, but did not know who he was at the time of the killing, because he had shaved off his mustache; that it was a moonlight night; that he told the deceased twice to stop, and he did not do so; that he fired the rifle twice and the deceased told him to quit; that he did not shoot at the deceased, but each time he shot, the butt of his rifle was resting on the fence, and he fired straight up; that after he shot the second time, the deceased twisted around and flourished something which the defendant thought was a pistol; that the defendant then fired the fatal shot and because he believed the deceased was going to shoot him.

If these facts are accepted by the jury, and they find that the last shot was fired under a reasonable apprehension of death or great bodily harm, the defendant would be entitled to an acquittal.

The deceased had a bottle of medicine and not a pistol, and he had not stolen the horse; but the conduct of the defendant must not be judged by the facts as they actually existed, but as they reasonably appeared to him.

*398If bis evidence is believed, be thought be was in pursuit of a borse tbief, and it was tbe part of prudence to take bis rifle witb bim. When be met tbe supposed tbief, he bad tbe right to tell him to stop, and be was not in tbe wrong to shoot tbe rifle in tbe air, and not at tbe deceased, as notice that be was armed, and an inducement to obey tbe command to bait. If so, be was guilty of no wrongful act up to tbe firing of tbe last shot, and there is evidence that this shot was fired in self-defense.

There is evidence on tbe part of tbe State tending to prove that tbe defendant knew tbe deceased; that tbe killing was in a short distance of tbe place where tbe borse was taken; that as tbe deceased was going in that direction, .the defendant must have known be was returning tbe borse, and other facts indicating that there was no necessity for tbe killing; but these are for tbe jury.

For tbe error pointed out, there must be a

New trial.

CiARK, C. J.,

dissenting: Tbe deceased, Roby Carter, and tbe defendant lived on tbe land of Charlie Yoncanon. Yoncanon bad given tbe deceased permission, in consideration of having doctored a crippled borse, to ride tbe other of bis two horses. At 10 o’clock one night tbe child of tbe deceased being sick, be went to Yoncanon’s lot, got tbe other borse and went for some medicine. Yoncanon being from home, bis wife roused tbe «defendant, who went down tbe road some 30.0 yards to tbe bouse of tbe witness Bynum Banner, 'who testified that be bad beard tbe borse pass going off; that soon tbe deceased rode up on bis return, when tbe defendant said, “Halt, there! throw up your bands!” three times, and fired. Tbe deceased said, “Quit that”; tbe defendant again said “Halt, and throw up your bands!” three times, and shot a second time, and tbe deceased again said “Quit that”; then tbe defendant fired a third time.. Tbe deceased then said, “You have killed me,” and added, “Why did you shoot me?” Tbe defendant said, “I am sorry I shot you. You ought to have told me who you were. You ought to have stopped when I called to you.” It was a moonlight night,

*399Linville Aldrich testified that while lying on the bed wounded, the deceased said to the defendant, “You ought not to have shot me.” Defendant said, “You ought to have stopped and held up your hands when I called to you,” to which the deceased replied, “You shot me twice after I told you it was Roby.”

Sam Aldrich testified that the deceased said at that time, “Bailey, you ought not to have shot me,” to which the defendant said, “You ought to have stopped and held up your hands.” The deceased replied, “You did not halt me until after you had shot twice. I told you it was Roby, and told you not to shoot.” The defendant did not deny this statement then, nor in his evidence on the stand.

The defendant testified in his own behalf that he “heard the horse coming, walked out in the moonlight to the fence, did not recognize the man with the horse, told him to halt and throw up his hands. I had no reason to shoot, but he hept riding,' and I shot. Did not shoot to hit him. He said ‘Quit that.’ I hollered to him to halt and throw up hands again. He was getting a little by me. He twisted around and had a bottle. I thought it was a nickel-plated pistol. I shot again, and he either fell off or jumped off. He said, ‘Don’t shoot again; it is Roby.’ I was a little afraid of him, but I went to him. He said he was shot, and I helped him up. I did not shoot to hit him at first, but just thought he would stop.” On cross-examination he said: “Can’t tell why I fired the first two shots; had no reason; fired with the expectation of him stopping; had the butt of gun on fence and fired straight up.” When asked by the solicitor, “Why did you fire?” the defendant replied, “Why didn’t he stop?” He then added: “The horse was trotting all the time. I did not shoot to hit him until he flourished the bottle, and I thought it was a nickel-plated pistol.” The deceased died next day at noon.

The deceased was in no fault. He'took-the horse by permission of the owner and went for some medicine for his sick child. On his return home with the horse, the defendant, according to his own account on the stand, was on the side of the road and told him to halt and hold up his hands, and fired twice because he did not, and then he says the deceased “flourishing” a bottle *400be thought was a pistol, he fired and killed him. The two Aid-riches testified that the deceased said to the defendant that he told him who he was and told him not to shoot, twice, before he was shot fatally, and that the defendant did not halt him until after he had shot twice. The defendant did not deny this conversation on the stand.

It appears from this evidence that the deceased was doing no unlawful act, and that the defendant shot him because he did not halt when told to do so by the defendant, and that he was unarmed. The defendant admitted on the stand that after each of the first two fires the deceased told him to “Quit that.” If at this point, after being fired upon twice, the deceased had been armed and had fired back, the jury might well have acquitted the deceased upon the ground of self-defense. And if the defendant had then fired in return and killed, he would at least have been guilty of manslaughter, because he was in the wrong and brought on the affray. Certainly the condition of the defendant is no better when the deceased did not fire, was indeed unarmed, and the defendant does not allege even that the deceased pointed the bottle in his direction, but merely says that the defendant “flourished” it.

His Honor was right when he told the jury that “if they found beyond a reasonable doubt that the shot fired by the defendant caused the death of Roby Carter and the facts as to all matters in evidence which preceded the moment of the defendant’s firing the rifle the third time were as testified to by all the witnesses, including the defendant himself, who was examined as a witness in his own behalf, then the defendant would be, in law, guilty of manslaughter at least, and it would be their duty to so find.”

Life must be cheap indeed in North Carolina, and there is small risk in taking it, if a man riding along the road on a lawful errand can be halted by another who commands him to throw up his hands, and because he does not stop and hold up his hands, that other fires twice, and then because he supposes, mistakenly, that the man thus illegally assaulted “flourishes” a pistol, can kill him without liability. It makes no difference that the defendant thought the man was illegally in possession of the horse, nor that mistakenly he thought he was also in pos*401session of a pistol. In fact, tbe man was lawfully in possession of tbe borse, and tbe defendant does not allege tbat tbe deceased did anything except failing to stop, telling tbe defendant to “Quit tbat.” Tbe defendant says be fired first two times because deceased did not stop. Halting tbe deceased and firing botb shots were an illegal assault. Tbe defendant could not justify under self-defense, even though tbe deceased bad then returned bis fire. This has been recently fully discussed by Hohe, J., in S. v. Lucas, 164 N. C., 471, bolding tbat “self-defense may not be successfully maintained where tbe prisoner has wrongfully assaulted tbe deceased or provoked a fight resulting in tbe lát- ■ ter’s death.” Tbe conduct of tbe defendant from tbe beginning was illegal. Tbe most tbat can be said is tbat be did not intend to kill tbe deceased until tbe third shot. Having brought on tbe trouble by unlawfully baiting tbe deceased and firing twice to make him stop, when be bad no right to do so, tbe subsequent killing was done “in tbe commission of an unlawful act, and was manslaughter.” 4 Blackstone, 191. ,

To excuse a defendant in such a case as this and give him tbe benefit of excusable or jústifiable homicide, it must clearly appear tbat be himself bad not been at fault. S. v. Clark, 134 N. C., 698; S. v. Brittain, 89 N. C., 481; S. v. Dixon, 75 N. C., 275.

Tbe deceased was in lawful possession of tbe horse, and was bringing him back home. But even if be bad taken tbe animal without permission, and tbe defendant bad killed him unintentionally, when taking tbe borse out of tbe lot, instead of bringing him borne (as tbe deceased was doing), it would have been manslaughter. In S. v. Roane, 13 N. C., 58, Henderson, J., held: “A homicide may be justified when it takes place to prevent a threatened felony, but not when inflicted as a punishment for one already committed.” And be further says: “To justify tbe homicide of a felon for tbe purpose of arresting him, the slayer must show not only felony actually committed, but also tbat be avowed bis object and tbe felon refused to submit.”

In Wharton on Homicide (3 Ed.) it is said: “Though the trespass was against property and tbe killing was unintentional, it is at least manslaughter where a deadly weapon was used,” *402citing S. v. Vance, 17 Iowa, 138. Here tlie killing was intentional. And again, on the same page of "Wharton: “If a killing was done to prevent a felony, however, or in defense of home, property, or of another, but was unnecessary or done with improper force, it was manslaughter only if the act was without malice; otherwise, it was murder.” Here all three shots were unnecessary to prevent felony and no felony had been committed or attempted.

The defendant had no right to slay the deceased, nor to try to arrest him because he thought the horse had been taken off illegally. He was not an officer, and if he had been, he had no warrant. S. v. Rogers, ante, 388. The fact that the deceased was bringing the horse homeward showed that taking him at the utmost was only a trespass. As already said, the prisoner had no right to kill the deceased, even if found taking the horse out of the lot, unless the prisoner had notified the deceased first that he would arrest him, and the felon had refused to submit. S. v. Roane, supra.

It follows that halting the deceased and shooting twice when the deceased was returning home with the horse was unlawful, and if an affray had followed in which the defendant had slain him, it would have been at least manslaughter. The deceased, not the defendant, could have pleaded self-defense. For a far stronger reason under these circumstances, when the deceased did not fire back or even attempt to do so, but merely flourished a bottle, the killing could not be justified as self-defense. The deceased was doing nothing unlawful. The defendant was not an officer and had no warrant. That he thought the deceased had illegally taken the horse did not justify him to halt or arrest the deceased with a shotgun. His mistake in supposing that the bottle was a pistol (if indeed he did so suppose) cannot make the killing self-defense when even if the deceased had fired the defendant would not have been entitled to this defense.

Can human life in this State be taken without liability because one, rightfully going along the road, does not stop when halted illegally by another, gun in hand? And is that other (who is not even an officer) justifiable in slaying because he *403thinks tbe man who does not bait may shoot in return? His Honor was surely correct when he told the jury that if they believed the uncontradicted evidence the defendant was at least guilty of manslaughter.