#### STATE v. WALTER. J. KENNEDY.

(Filed 28 April, 1915.)

1. Murder — Self-defense—Quitting tlie Combat.

In order to establish a perfect self-defense for a homicide in a fight wrongfully brought about by the defendant, especially when he has done so by a battery, it must be shown by him that, at a time prior to the act of killing, he had “quitted the combat”; and while this expression does not necessarily imply a physical withdrawal at the peril of life and limb, he must show an abandonment in good faith and that he had so signified to his adversary.

2. Same — Prior to Killing — Time of Killing — Trials—Instructions.

One who has brought about a fight resulting in the death of his adversary cannot maintain a perfect self-defense by showing that at the precise time the act was committed he was sorely pressed and could not abandon the combat with proper regard for his own safety; and where the evidence on behalf of the State tends to show that the defendant walked into the store of the deceased, quarreled with him, slapped him in the face while holding a pistol in his hand, and then shot and killed him with it, and on behalf of the defendant, that he had been first assaulted by the deceased and his brother, who knocked him against a partition in the barber shop, then to his knees, continuing to beat him on the head and shoulders, when he said, “Boys, get off of me” three or four times, then threatened to shoot, and as they did not do so, he fired the fatal shot: Held, upon this conflicting evidence, the charge of the court was correct, which, in substance, instructed the jury that if the defendant provoked the assault and fought willingly and wrongfully he would at least be guilty of manslaughter, unless, before delivering the fatal shot, he had in good faith abandoned the difficulty, and retreated as far as he could with safety.

3. Evidence — Dying’ Declarations — Weight of Evidence — Court’s Discretion— Instructions.

While dying declarations are not made under oath and subject to cross-examination, and should be considered by the jury with á certain amount of caution, the way in which this caution may be expressed, in a charge to the jury, is, to a great extent, left to the discretion of the trial judge, who having properly charged thereon in this case, exception thereto that he had not used the language approved in a certain precedent will not be sustained on appeal.

Appeal by defendant from Lane, J., at November Term, 1914, of STANLY.

Indictment for murder of one John (called Johnnie) Morton.

It was proved that, on 7 March, 1914, about 5 p. m., at Oakboro, in said county, Johnnie Morton was shot and mortally wounded by Valter Kennedy, and died of the wound about four days thereafter.

There was evidence on the part of the State tending to show that Kennedy and one Pointer, a lightning-rod agent, were driving by the store of deceased, where the latter and William Osborne and several others then were, and received the impression that some one in the store cursed Pointer, referring to him as a “damned old lightning-rod agent”; that *327tbe buggy was stopped, and Pointer, going in tbe store, inquired wbo cursed bim, repeating tbe charge. Some one said no sucb talk was in bere, and Kennedy replied, “You can’t bluff me; some of you said it,” and tbe two walked out, Kennedy going into a barber shop near by; tbat shortly thereafter, Columbus Morton, wbo bad been in tbe barber shop, went into bis brother’s store and told bim be could go and be shared, as tbe brother could mind tbe store for bim, and Johnnie walked into tbe barber shop, and as be was about to take bis seat in one of tbe chairs, Johnnie said, “Kennedy, there was a mistake about tbat cursing,” and Osborne said, “Yes, Walter, there'was a misunderstanding,” when Kennedy said, “You can’t scare me or bluff me,” and slapped Morton in the face, and Morton put bis band on Kennedy’s shoulder and said, “Why, Walter, what do you mean?” and Kennedy shot bim in tbe body under tbe arm, inflicting tbe wound of which be died.

Connor Smith and Finley Hinson, eye-witnesses of all or a part of tbe occurrence, and tbe dying declaration of tbe deceased were in substantial accord as to this version, and tbe account received confirmation from tbe declaration of Kennedy, telling bow tbe bullet entered and ranged. Tbe course of tbe ball also was in support of tbe position of tbe State tbat tbe pistol was fired and tbe wound inflicted while tbe parties were in an upright position.

One of tbe State’s witnesses testified tbat Kennedy bad bis pistol out when be first slapped tbe deceased in tbe face, and it was argued by tbe State tbat tbe bruises found on tbe knees of Kennedy, after tbe killing, were caused in tbe struggle which occurred when tbe father and brother of tbe defendant took tbe weapon away from bim.

■ Tbe evidence of tbe defendant tended to show tbat, after tbe talk at tbe store, defendant went into tbe barber shop to get a shave, and, while he waited for tbe water to beat, Osborne came in and said: “Kennedy, I don’t like to be accused of a thing I’m clear of,” and W. said, “Mr. Osborne, I haven’t accused you of anything you didn’t do,” etc., and be said, “You accused me of cursing Pointer, and I didn’t do it,” and W. said, “I don’t say you are tbe man,” etc. Osborne replied, “I’m not tbe man; I never fought any, but I’m not like tbe man wbo can’t.” “Then Johnnie came in and said, ‘Walter Kennedy, you are trying to run my business,’ and I replied, ‘I am not, and I don’t want to run any sucb business as you run, and you can’t run mine.’ And when I said tbat be struck me — right up bere on tbe bead. (Witness indicates on bead.) I kinder dodged down, and be knocked me back against tbe partition right at tbe back of tbe stove. Tbat partition is between where we were and tbe little back room, and there are some curtains bung up there. He knocked me against tbat partition, and then bis brother, Lum Morton, come in. He is the one tbat was on tbe stand bere yesterday. And Lum *328Morton said, 'Damn bim, let me get bold of bim, and I’ll fix bim,’ and be caugbt me in tbe collar and jerked me to my knees; botb of tbem beating me in tbe back of tbe bead and shoulders, be striking my right shoulder, and I said, ‘Boys, get off of me,’ three or four times, and I said, 'If you don’t, I’ll shoot you off,’ and they wouldn’t do it; so I drew my gun and fired. They bruised my shoulder and back of my neck; my bead was sore, and my knees were scarred up and skinned. I hurt my knees on the floor. I would rear up and try to get up with tbem, and they would press me back to tbe floor, and that, is bow my knees got bruised. My clothes were cut, on tbe left side. 11 asked tbem three or four times to get off. Bum Morton caugbt bold of me in tbe collar. It tore my collar loose in tbe bole. My clothes are there in that suitcase. Botb of my coats were cut. My coat and overcoat, too. My collar was torn and my coat and overcoat were cut. It cut through tbe overcoat. I did not see tbe knife. I felt it when be cut my coat. I felt my coat pulling from me, and kinder zip, zip; sorter that-way. (Collar, cravat, and overcoat were exhibited in court, and witness showed tbe torn and cut places on same.) I shot John Morton to save my own life. I thought they were going to kill me. They would not get off of me. When tbe gun fired, they left me. They ran out when tbe pistol fired, and my brother was tbe first man that came to me, and be said, ‘Don’t shoot any more.’ His name is Yander. He took my gun and said, 'Don’t shoot any more,’ and I said, 'Here, take my gun, and keep tbem off of me.’ I told bim that and banded bim my gun, and I walked out of tbe door. John Morton run out. I never did see bim, but where they say be fell a good many were rushing up around there.”

Tbe testimony of tbe father and brother of tbe defendant was in substantial support of defendant’s account. Cuts on bis coat and bruises on his knees were proved to have been shown not long after tbe occurrence; certainly that same night or early next morning.

His Honor charged tbe jury, fully reciting tbe positions of tbe parties and much of tbe evidence.

There was verdict of guilty of manslaughter. Judgment on tbe verdict, and defendant excepted and appealed, assigning for tbe error a portion of bis Honor’s charge, as follows: “Now, tbe law is that if a person by bis own conduct, either by words or acts, calculated and intended to provoke a difficulty, induces or provokes another to assault bim, and a combat ensues, and tbe person who provokes another to assault bim fights willingly and wrongfully, be is at least guilty of manslaughter, unless, before delivering tbe fatal blow or act, he has in good faith abandoned tbe difficulty and retreated as far as be can with safety, and then only can be be beard to plead self-defense, if be has been at fault in bringing on tbe difficulty.”

*329And tbe refusal to give tbe following prayer in reference to tbe dying declarations of tbe deceased: “Tbe admission of dying declarations is tbe exception to tbe general rule of evidence wbicb requires tbat tbe witness should be sworn and subjected to a cross-examination. Tbe solemnity of tbe occasion may reasonably be beld to supply tbe place of an oatb, but nothing can fully supply tbe absence of a cross-examination. Such declarations should be received with much caution on account of tbe absence of such cross-examination, and tbe jury in this case in passing upon tbe credibility of tbe alleged dying declaration in this case should take into consideration tbat tbe deceased was not subjected to a cross-examination.”

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

J. Q. Brooks, F. I. Osborne, R. L. Smith, R. E. Austin, G. D. B. Reynolds, A. C. Huneycutt, J. J. Parker for defendant.

HoKE, J.,

after stating tbe case: In S. v. Brittain, 89 N. C., 481, and in reference to defendant’s first exception, this Court beld: “Where a prisoner makes an assault upon A. and is reassaulted so fiercely tbat tbe prisoner cannot retreat without danger of bis life, and tbe prisoner kills A.: TIeld, tbat tbe killing cannot be justified upon tbe ground of self-defense. Tbe first assailant does tbe first wrong and brings upon himself the necessity of slaying, and is therefore not entitled to a favorable interpretation of tbe law.” And, in support of tbe position, Ashe, J., delivering tbe opinion, quotes from Lord Hale, as follows: “If A. assaults B. first, and upon tbat assault B. reassaults A., and tbat so fiercely tbat A. cannot retreat to tbe wall or other non ultra without danger of bis life, and then kills B., this will not be interpreted to be se defendendo, but to be murder or simply homicide, according to tbe circumstances of tbe case; for otherwise we should have all tbe cases of murder or manslaughter, by way of interpretation, turned into se defendendo. Tbe party assaulted, indeed, shall, by tbe favorable interpretation of tbe law, have tbe advantage of this necessity to be interpreted as a flight, to give him tbe advantage of se defendendo, when tbe necessity put upon him by tbe assailant makes bis flight impossible; but be tbat first assaulted bath done the first wrong, and brought upon himself this necessity, and shall not have tbe advantage of bis own wrong to gain tbe favorable interpretation of tbe law, tbat tbat necessity wbicb be brought upon himself should, by tbe way of interpretation, be accounted a flight to save himself from tbe guilt of murder or manslaughter.”

Tbe same position is stated by tbe Court in Garland’s case, 138 N. C., 675, as follows: “It is tbe law of this State tbat where a man provokes a fight by unlawfully assaulting another, and in tbe progress of tbe fight *330kills bis adversary, be will be guilty of manslaughter at least, tbougb at tbe precise time of tbe homicide it was necessary for tbe original assailant to kill in order to save bis own life. This is ordinarily true where a man unlawfully and willingly enters into a mutual combat with another and kills bis adversary. In either case, in order to excuse tbe killing on tbe plea of self-defense, it is necessary for tbe accused to show that be 'quitted tbe combat before tbe mortal wound was given, and retreated or fled as far as be could with safety, and then, urged by mere necessity, kills bis adversary for tbe preservation of bis own life.’ ” Foster’s Crown Law, p. 276. Tbe same author says, on page 277: “He, therefore, who, in case of a mutual conflict, would excuse himself on tbe plea of self-defense, must show that before tbe mortal stroke was given be bad declined any further combat and retreated as far as be could with safety, and also that be killed bis adversary through mere necessity and to avoid immediate death. If be failetb in either of these circumstances be will incur tbe penalty of manslaughter,” citing also tbe above passage from Lord Hale and Brittain’s case, supra,, in support and illustration of tbe principle.

It may be well to note that tbe term “quitting tbe combat,” within tbe meaning of these decisions, does not always and necessarily require- that a defendant should physically withdraw therefrom. .If tbe counter attack is of such a character that be cannot do this consistently with safety of life or limb, such a course is not required; but before tbe right of perfect self-defense can be restored to one who has wrongfully brought on a difficulty, and particularly where be has done so by committing a battery, be is required to abandon tbe combat in good faith and signify this in some way to bis adversary. Tbe principle here and tbe basic reason for it is very well stated in case of Stoffer v. The State, 15 Ohio St., 47: “There is every reason for saying that tbe conduct of tbe accused relied upon to sustain such a defense must have been so marked in tbe matter of time, place, and circumstance as not only to clearly evince tbe withdrawal of tbe accused in good faith from tbe combat, but also as fairly to advise bis adversary that bis danger has passed and to make bis conduct thereafter tbe pursuit of vengeance rather than measures taken to repel tbe original assault.” And when, as heretofore shown, tbe counter assault is so fierce that tbe original assailant cannot comply with this requirement, then, in tbe language of Lord Sale, “He that first assaulted bath done tbe first wrong and brought upon himself this necessity, and shall not have tbe advantage of bis own wrong to gain tbe favorable interpretation of tbe law, that that necessity which be brought on himself should, by way of interpretation, be accounted a flight to save himself from murder or manslaughter.”

Tbe doctrine as stated has been applied or recognized as sound in principle in well considered cases here and elsewhere and is given also in *331text-books of approved excellence. S. v. Pollard, 168 N. C., 116; S. v. Dove, 156 N. C., 653; S. v. Kennedy, 91 N. C., 572; Parker v. The State, 88 Ala., 4; S. v. Silas Darling, 202 Mo., 150; S. v. Smith, 37 Mo. App., 137; S. v. Hawkins, 18 Ore., 476; Kuney v. The People, 108 Ill., 519; S. v. Benham, 23 Iowa, 154; 1 McLean Crim. L., see. 309; Clark’s Crim. L., p. 183; 25 A. and E., pp. 270-271.

In 1 Hawkins Pl. Cr., p. 87, tbe learned author states tbe position in even stronger terms, as follows (cb. 11, sec. 7) : “According to some good opinions, even be wbo gives another tbe first blow, in a sudden quarrel, if be afterwards do what be can to avoid killing him, is not guilty of felony. Yet such a person seems to be too much favored by this opinion, inasmuch as tbe necessity to which be is at last reduced was at first so much owing to bis own fault.”

Tbe charge of bis Honor, then, was in strict accord with tbe doctrine as it obtains in this jurisdiction, and, this being true, we may not approve tbe argument urged upon us by tbe learned counsel, that a man wbo wrongfully brings on a fight may maintain tbe position of perfect self-defense because, at tbe precise time of tbe homicide, be was “sorely pressed” and could not abandon tbe combat with any proper regard for bis safety, citing Ingold's case, 49 N. C., 217. According to tbe testimony, as it has been evidently accepted by tbe jury, bis client, “armed with a deadly weapon, wrongfully began tbe difficulty by slapping tbe deceased in tbe face, and be never at any time after that ceased tbe combat or gave any sign of doing so. Tbe statement in bis own testimony that be said, “Get off me, boys,” two or three times, and then, “Get off me, or I’ll shoot you off,” presents him in no such attitude as tbe law requires to restore bis right of perfect self-defense, and while, according to bis own account, be was being “sorely pressed” at tbe precise time of the killing, it was a necessity brought about by bis own wrong, and, in our opinion, under tbe law and tbe testimony, be has been properly convicted.

True, there are numbers of decisions on this subject, and by courts of high repute, that tbe requirement that one in tbe wrong at tbe beginning shall cease tbe combat in good faith and signify this to bis adversary before tbe right of self-defense is restored to him, should only apply when tbe original assault wos felonious, or at least of a character importing menace of death or great bodily barm; but in many of these tbe person indicted bad been convicted of the offense of murder and tbe courts were dealing chiefly with tbe right to a new trial of that supreme issue, and may not have been specially attentive to tbe right of self-defense. This was, perhaps, true in Ingold's case, cited by counsel; but to tbe extent that Ingold's case gives countenance to tbe principle that one wbo has wrongfully commenced a fight may maintain tbe position of perfect *332self-defense because, at tbe time, be is “sorely pressed,” and without having given any intimation of his purpose to abandon the combat, the same is not in accord with our later decisions, and may be considered as disapproved. The case of Foutch v. State, 95 Tenn., 711, reported in 45 L. R. A., 687, and S. v. Gordon, 191 Mo., 114, reported in 109 Am. St. Reports, are to the effect that mere opprobrious or insulting words, though resulting in a difficulty, should not, of themselves, be held to deprive a man of the right of self-defense; decisions that are not apposite to the facts presented in this record and which may not, in all cases and necessarily, antagonize the principles we approve in the disposition made of the present appeal.

On the second exception the prayer of defendant in reference to the dying declarations is taken, in exact terms, from the opinion in S. v. Williams, 67 N. C., pp. 13-14. An examination of the case, however, will disclose, as 'suggested in the argument of the State’s counsel, that the learned judge, in excluding certain declarations, was stating in general terms the reasons for receiving such declarations in evidence and as a caution to courts in reference to their admissibility, and was not intending to lay down any special formula in which the caution should be expressed in a charge to the jury. In the present case the judge did caution the jury, reminding them that the declarations were not made under oath nor at a time when deceased could have been subjected to cross-examination, and instructed the jury that “having been made in the fear of impending death and after hope of life was gone, the law says they may be given such weight, if the jury sees fit to do so, as they would have received if they had been made under sanction of an oath. The law says that no superstitious effect is to be given a statement because it is a dying declaration.”

While these declarations are to be weighed with caution, and the judge should so tell the jury, the way in which the caution should be expressed is, to a great extent and very properly, left to the discretion of the trial judge, ánd in this instance the charge of his Honor is not dissimilar to the form approved in S. v. Whitson, 111 N. C., 395.

There has been no reversible error made to appear, and the judgment of the court is affirmed.

No error.