{
  "id": 11271981,
  "name": "STATE v. LEE FULCHER",
  "name_abbreviation": "State v. Fulcher",
  "decision_date": "1922-10-18",
  "docket_number": "",
  "first_page": "663",
  "last_page": "665",
  "citations": [
    {
      "type": "official",
      "cite": "184 N.C. 663"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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    {
      "cite": "170 N. C., 660",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
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    {
      "cite": "155 N. C., 329",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "172 N. C., 882",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "107 N. C., 947",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    }
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  "last_updated": "2023-07-14T19:54:19.408476+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "WaliceR and Adams, JJ., dissent."
    ],
    "parties": [
      "STATE v. LEE FULCHER."
    ],
    "opinions": [
      {
        "text": "Stacy, J.\nMalissa Sharp and her husband, Ed. Sharp, were tenants of the defendant, living on his farm; and in the same house the defendant\u2019s mother occupied a room on the second floor. It was the habit of the defendant\u2019s boy, a child about four years old, to visit his grandmother, and the boy soon became a source of annoyance to Malissa.\nOn 19 October, 1921, the defendant went over to get his horse and buggy, which he kept in his mother\u2019s lot; his boy came down to the barn and the defendant put the child in the buggy while he was taking off the wheels to grease them. Fulcher called to his mother and asked her to bring him his oil can, which she did. About this time Malissa Sharp came down to the barn, where the defendant, his mother, and child were. She told the defendant that his boy \u201chad been messing with her,\u201d and if he didn\u2019t keep him away from there she was going to whip the little \u201cslick-headed\u201d urchin. Whereupon, the defendant replied: \u201cNow, Malissa, there\u2019s no use talking that way; I dare you to put your hands on him.\u201d Malissa said, \u201cI don\u2019t take a dare,\u201d and further, according to her own evidence: \u201cI had the tobacco stick in my right hand, and Fulcher grabbed hold of my two wrists; I jerked away from him; went in the house and got my gun; when I came out of the house Fulcher was running down the road, away from the house.\u201d The defendant\u2019s version of the matter was as follows: \u201cMalissa Sharp came down to the lot and said, \u2018Lee, what are you going to do with that slick-headed boy of yours? If you don\u2019t keep him away from here, I\u2019m going to beat him.\u2019 I said, \u2018Now, Malissa, there\u2019s no use talking that way; I dare you to put your hands on him.\u2019 She said, \u2018I don\u2019t take a dare from nobody,\u2019 and grabbing up a tobacco stick, she made towards the boy, and I grabbed her hands and wrung the stick out of them; then she turned around and ran to the house, saying she was going to get her gun; then I got out of there and ran down the road.\u201d\nThe defendant met Ed. Sharp some distance away and told him to go and take care of his wife. This was all that happened. No harm was done. Malissa herself testified: \u201cDidn\u2019t hurt me; made marks of his hands on my wrists when he took hold of me. These marks were bruises.\u201d The State offered other evidence tending to show that her wrists were \u201cnot bruised or cut,\u201d but only stained with grease.\nFrom the foregoing, it will be noted Malissa Sharp does not say, in so many words, that she started towards the boy with the stick in her hand, while the defendant says that she did. This is the single point of difference in their testimony, if, indeed, it be material on the present record. There is no denial of the fact itself, and we think that such is but tbe natural interpretation and construction to be placed on the testimony of the prosecutrix. No other conclusion seems to be permissible from all the evidence, and the second motion for judgment as of nonsuit is to be considered in the light of the whole case. The record is free from any conflict of evidence on this point, and, in considering the motion at the close of the entire evidence, the defendant\u2019s testimony, where not in conflict with that of the prosecution, may be used to explain or to make clear what has been offered by the State. This was the purpose of the Legislature in providing that such motion might be renewed at the conclusion of all the evidence.\nThe case was not settled by the judge, and it is possible that some of the evidence does not appear in the statement of case on appeal; but, upon the instant record, we are disposed to g-rant the defendant\u2019s motion for judgment as of nonsuit. Fulcher had a right to shield his boy from harm, and it does not appear that he used any excessive force. S. v. Harrell, 107 N. C., 947. On the contrary, the prosecuting witness seems to have been the aggressor, from the beginning to the end, and she apparently provoked all that took place. Indeed, such is the irresistible conclusion to be drawn from the State\u2019s evidence.\nIt is true that in a case of this kind, where the defendant has the burden of exculpation, it is often very difficult to determine just what evidence will warrant the judge in taking the case from the jury. In many instances, perhaps, it will call for careful discrimination. S. v. Bridgets, 172 N. C., 882.\nThe motion we are now considering was made under C. S., 4643, a statute which serves, and was intended to serve, the same purpose in criminal prosecutions as is accomplished by C. S., 567, in civil actions. Originally, under this latter section, in cases to which it was applicable, there was considerable doubt as to whether a plea of contributory negligence \u2014 the burden of such issue being on the defendant \u2014 could be taken advantage of on a motion to nonsuit, but it is now well settled that such may be done when the contributory .negligence of the plaintiff is established by his own evidence, as he thus proves himself out of court. Wright v. R. R., 155 N. C., 329; Horne v. R. R., 170 N. C., 660, and cases there cited.\nFor like reason, and in recognition of the avowed purpose of the statute applicable to criminal cases, we are of opinion that where a complete defense is established by the State\u2019s evidence, a defendant should be allowed to avail himself of such defense on a motion for judgment as of nonsuit. See S. v. Johnson, ante, 637.\nIn the instant case and on the present record we think the action should have been dismissed.\nEeversed.\nWaliceR and Adams, JJ., dissent.",
        "type": "majority",
        "author": "Stacy, J."
      }
    ],
    "attorneys": [
      "Attorney-General Manning and Assistant Attorney-General Nash for the State.",
      "Charles L. Abernethy and Julius F. Duncan for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. LEE FULCHER.\n(Filed 18 October, 1922.)\n1. Criminal Law \u2014 Evidence\u2014Nonsuit\u2014Statutes.\nWhere the State\u2019s evidence and that of the defendant is substantially to the same effect, in an action for an assault, and tends only to exculpate the defendant, Ms motion as of nonsuit after all the evidence has been introduced, considering it as a whole, should be sustained. C. S., 4643.\n2. Same \u2014 Assault\u2014Parent and Child \u2014 Right of Parent to Protect His Child.\nThe father may shield his child from the assault of another to the extent necessary for the purpose without himself being guilty of an assault; and where he has done so, without the use of excessive force, as appears from all the evidence in the case, his motion as of nonsuit at the close of his evidence should be granted. C. S., 4643.\nWalker and Adams, J.T., dissent.\nAppeal by defendant from Granmer, J., at March Term, 1922, of CARTERET.\nCriminal prosecution, charging the defendant with an assault on one Malissa Sharp.\nFrom an adverse verdict and judgment of six months on the roads, the defendant appealed.\nAttorney-General Manning and Assistant Attorney-General Nash for the State.\nCharles L. Abernethy and Julius F. Duncan for defendant."
  },
  "file_name": "0663-01",
  "first_page_order": 719,
  "last_page_order": 721
}