#### STATE v. MARTIN BOST.

(Filed 27 May, 1926.)

1. Homicide — Murder—Self-Defense—Evidence—Instructions.

■Where the evidence of the prisoner upon a trial for a homicide, tends to show that the deceased was under the influence of drink, and unprovoked, cursed him and threatened Ms life, and threateningly approached him to within a few feet, on the prisoner’s own premises, with the axe upraised against him: Held, upon this evidence, the prisoner was entitled to an instruction, without special request therefor, that he was not only entitled to use sufficient force to repel force in order to save his life or himself from great bodily harm, but to exceed such force if in the opinion of the jury it reasonably appeared to him that such excessive force was necessary.

2. Same — Burden of Proof.

The burden is on the defendant tried for a homicide, relying on self-defense, to show it by the greater weight of the evidence.

Stacy, O. J., dissenting; Clarksoit, J., concurring in the dissenting opinion.

Appeal by defendant from Lane., J., at October Term, 1925, of OabaeRus. New trial.

Indictment for murder. Verdict: guilty of manslaughter. From judgment upon verdict, that defendant be confined in the State’s prison for a term of five years, defendant appealed to the Supreme Court.

*2 Attorney-General Brummitt and Assistant Attorney-General Nash for the State.

Hartsell & Hartsell, H. S. Williams, J. Lee Crowell and J. Lee Crowell, Jr., for defendant. ,

Connor, J.

-Tbe evidence submitted to tbe jury upon tbe second trial of tbis action, bad in consequence of tbe disposition of defendant’s appeal from tbe judgment rendered at tbe first trial, in tbe Superior Court of Cabarrus County, to tbe Spring Term, 1925, of tbis Court, as reported in 189 N. C., 639, was substantially tbe same as tbat upon tbe former trial. Assignments of error upon tbis appeal are based upon exceptions to instructions given by tbe court in tbe charge to tbe jury, and also upon exceptions to tbe failure of tbe court to give certain instructions requested by defendant in writing.

There was evidence upon both trials supporting defendant’s contention tbat be billed deceased in self-defense, and tbat, therefore, tbe homicide was justifiable, or at least excusable. Defendant complains tbat upon tbe last trial, as upon tbe former, tbe jury was not instructed fully and correctly as to tbe principles of law applicable to tbe facts as tbe jury should find them from tbe evidence. He contends tbat upon these facts, notwithstanding bis admission tbat be killed deceased with a deadly weapon, be is not guilty, as charged in tbe indictment, for tbat he killed deceased in self-defense.

We said in tbe opinion upon tbe former appeal tbat there was no substantial evidence on tbe record tending to show tbat defendant bad provoked tbe difficulty with deceased, or bad entered into it willingly. It may be conceded tbat there was some evidence on tbe second trial, tending to contradict tbe testimony Qf defendant, as a witness in bis own behalf, and to support tbe contentions of tbe State, which was not offered at tbe former trial; there is no evidence, however, from which tbe jury could have found tbat there was a fight or mutual combat between defendant and deceased, at any time before tbe fatal shots were fired by defendant. Tbe evidence relied upon by defendant, consisting chiefly of bis own testimony, was identical on both trials. Upon tbe former appeal, in view of defendant’s evidence, we held tbat it was error, entitling defendant to a new trial, for tbe court to fail to instruct tbe jury, although not requested to do so, by prayer for special instruction, tbat tbe right of self-defense may be restored to a defendant, although be provoked tbe difficulty, or entered into it willingly, if tbe jury shall find tbat during tbe progress of tbe fight, which followed tbe difficulty, be quit tbe combat, in good faith, and gave notice to bis adversary of such action on bis part. Tbis principle is well settled, and in view of tbe instruction given to tbe jury by tbe court on tbe former *3trial that defendant could not rely upon the plea of self-defense if he provoked his adversary to the fight, or entered into it with him willingly, it was held that it was error for the court to fail to so instruct the jury, notwithstanding there was no substantial evidence from which the jury could find facts to which these principles of law are applicable. S. v. Jones, 188 N. C., 142; S. v. Moore, 185 N. C., 637; S. v. Baldwin, 184 N. C., 789; S. v. Robinson, 181 N. C., 552; S. v. Finch, 177 N. C., 599; S. v. Crisp, 170 N. C., 785; S. v. Kennedy, 169 N. C., 326; S. v. Pollard, 168 N. C., 116; S. v. Cox, 153 N. C., 638; S. v. Garland, 138 N. C., 678, 30 C. J., p. 53, sec. 223.

Upon the trial below,' resulting in the judgment from which defendant has again appealed, the court instructed the jury as follows:

> “If the defendant has shown to your satisfaction by any evidence in the case that he was at a place where he had a right to be, and that he was assaulted, that a felonious assault was being made upon him, that is, an assault with intent to kill, a murderous assault was actually being made upon him, and that he had reasonable grounds to believe and did believe that he was about to suffer death or great bodily harm at the hands of deceased, then, in that event, the law says that he could stand his grounds and meet force with force, and use such force as appeared reasonably necessary to him to repel the assault, and to' protect himself from death or great bodily harm, without being guilty of any crime whatever.”

Defendant excepted to this instruction, contending that there was error in that the court unduly limited defendant to the use of such force only as was required to repel the assault of deceased upon defendant, by meeting with like force the force exerted by deceased; defendant insists that in view of the evidence, the court should have further instructed the jury that if they found that defendant believed and had reasonable grounds to believe that it was necessary for him to shoot deceased before he got within striking distance of defendant, with the axe, defendant had a right, in self-defense, to shoot deceased with his pistol, and that although the wounds inflicted by defendant upon deceased with the pistol were fatal, defendant was not guilty, under the indictment, and that the jury should so say by the verdict.

This Court said, in S. v. Lucas, 164 N. C., 471: “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 his 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, are cited in support of this statement of the law. In the last cited case, it is said: “The general rule is that one may oppose another attempting the *4perpetration of a felony, if need be, to the taking of the felon’s life; as in the case of a person attacked by another, intending to murder him, who thereupon kills his assailant. He is justified.” 2 Bish. Or. Law, sec. 632. Again it is said: “A man may repel force with force, in defense of his person, habitation or property, against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony, such as murder, rape, burglary, robbery and the like, upon either. In these cases, he is not obliged to retreat, but may pursue his adversary, until he has secured himself from all danger; and if he kill him in so doing, it is called justifiable homicide.” 1 East P. C., 271; 2 Bish. Or. Law, sec. 633.

In S. v. Johnson, 184 N. C., 637, Justice Walker, writing for the Court, says: “It all comes to this, that if the jury find that the prisoner did not fight willingly, except in the sense that he was compelled to do so in order to defend himself, and was himself without fault, and he was feloniously or murderously attacked by the deceased, so that it reasonably appeared to him and he believed, that his life was in danger, or that he was about to receive great bodily harm, his right of self-defense was in such case, if found by the jury, complete and justifiable, and if he slew his adversary under such circumstances, the jury should acquit him.”

In S. v. Hill, 141 N. C., 769, it is said: “It is true, as a general rule, or under ordinary circumstances, that the law does not justify or excuse the use of a deadly weapon to repel a simple assault. The principle does not apply, however, where from the testimony it may be inferred that the use of such weapon was or appeared to be reasonably necessary to save the person assaulted from great bodily harm — such person having been in no default in bringing on or unlawfully entering into the difficulty. This was held in S. v. Matthews, 78 N. C., 523.”

The evidence submitted to the jury tended to show that defendant at the time of the homicide was 65 years of age, and weighed about 150 pounds; that deceased was 41 years of age, and weighed about 200 pounds. Defendant lived alone on his farm, about six miles from Concord, the county-seat of Cabarrus County. Deceased, who lived at a distance of about five miles from the home of defendant, had been his guest during the night preceding the day on which the homicide occurred. He had remained at the home of defendant during the day, no one else being there during the day or at the time of the homicide. When deceased came to defendant’s home, about dark of the preceding night, he brought with him a jug, containing wine. Defendant and dei ceased drank wine from the jug during the night; the next day deceased continued to drink wine, but defendant did not drink during the day; he attended to his work about his premises, looking after his stock, and *5milking bis cows. After milking bis cows, late in tbe afternoon, defendant was in a room, wbicb opened on bis back porcb, putting away tbe milk. He beard deceased, wbom be bad left on tbe porcb, kicking at a door, leading into one of tbe rooms of bis bouse. He reproved deceased for doing so; deceased became angry and began to curse and to threaten to go into tbe room where defendant was, to kill him, saying that be bad a gun and would shoot defendant. In a few moments, defendant saw deceased coming up to tbe porcb from tbe yard, with an axe, wbicb defendant kept at tbe wood-pile, about thirty feet from tbe porcb. Deceased bad tbe axe drawn over bis shoulder and was cursing defendant, and using violent language. Defendant knew that deceased was a dangerous and violent man, especially when be bad been drinking. When deceased was- almost in striking distance of him, defendant picked up bis pistol, and fired twice, probably three times at deceased, who fell, mortally wounded by tbe pistol shots. Defendant went at once to tbe borne of a neighbor and told him what bad occurred at bis borne. He and tbe neighbor returned to bis borne, and found tbe body of deceased lying on tbe porcb. Deceased was taken that night to a hospital, where be died tbe next day. Defendant went to Concord, early tbe next morning, and surrendered to tbe sheriff of tbe county.

In view of tbe evidence, tending to establish tbe foregoing facts, we think defendant was entitled to an instruction to tbe jury that upon their finding from tbe evidence tbe facts so to be, defendant bad tbe right, under tbe law of self-defense, not only to meet force with force, and to use such force as appeared reasonably necessary to repel tbe assault and to protect himself, but also tbe right to shoot bis assailant, if tbe jury should find that under tbe circumstances, it reasonably appeared to defendant necessary to shoot deceased in order to save himself from death or great bodily barm at tbe bands of deceased. Defendant admitted that be shot deceased, and that the wounds thus inflicted caused tbe death of deceased. He contended that bis act in so doing was justifiable; tbe jury should have been instructed specifically as to tbe law applicable to tbe facts as defendant contended them to be with respect to tbe act of defendant. Tbe court bad correctly instructed tbe jury that tbe admission of defendant that be billed deceased with a deadly weapon, was sufficient to support a verdict of guilty of murder in tbe second degree, and that tbe burden was thus thrown by tbe law upon defendant to satisfy tbe jury that be killed in self-defense as be contended. Tbe instruction given to tbe jury, to wbicb defendant excepted, is correct; we think, however, that it was not as full as defendant was entitled to. We have examined tbe entire charge tó tbe jury, as set out in tbe case on appeal. We do not find that defendant has bad tbe full *6benefit of the well-settled principle of the law of self-defense, applicable to the facts as he contended them to be.

We cannot sustain defendant’s assignments of error based upon his exceptions to the refusal of the court to give the special instructions set out in the case on appeal. These instructions present defendant’s contention that, under the law applicable to the facts as he contends them to be, he had the right to shoot and kill deceased. They omit, however, the principle that defendant must not only believe, but have reasonable grounds to believe it necessary to shoot and kill his assailant, in order for the jury to acquit him upon the principle of self-defense. The instructions prayed for are erroneous and were properly refused by the court. For the error indicated there must be a

New trial.

Staoy, C. J.,

dissenting: His Honor charged the jury that if a felonious assault was being made upon the defendant at the time he shot the deceased, and he believed, with reasonable ground for his belief, that he was about to suffer death or great bodily harm at the hands of his assailant, then, and in that event, he not only had the right to “stand his ground and meet force with force, and use such force as appeared reasonably necessary to him to repel the assault,” but that he also had the right under the law to use such force as appeared reasonably necessary “to protect himself from death or great bodily harm, without being guilty of any crime whatever.” (See instruction set out in opinion of Court.) But this is held for error because the judge did not go further and tell the jury “if they found the defendant believed, and had reasonable grounds to believe, that it was necessary for him to shoot deceased before he got within striking distance of defendant, with the axe, defendant had the right, in self-defense, to shoot deceased with his pistol.” This, in substance at least, is what the judge did tell the jury, as I understand the instruction. What else could the jury have thought the judge was talking about when he said, “If the defendant has shown to your satisfaction, . . . that a felonious assault was being made upon him, . . . and that he had reasonable grounds to believe, and did believe, that he was about to suffer death or great bodily harm at the hands of the deceased, then, and in that event, the law says that he could stand his ground and meet force with force, and use such force as appeared reasonably necessary to him to repel the assault, and to protect himself from death or great bodily harm (italics added), without being guilty of any crime whatever ?” It was admitted that the defendant shot the deceased with a pistol, and the lawfulness of his conduct, under the circumstances, was the only question before the jury. The jury must have understood that if a felonious assault was being made *7upon tbe defendant and be believed, witb reasonable ground for bis belief, that be was about to suffer death or great bodily barm at tbe bands of tbe deceased, then, and in that event, be could stand bis ground and use such force as was necessary, or such force as reasonably appeared necessary, to protect himself from death or great bodily barm, without being guilty of any crime whatever. S. v. Lipscomb, 134 N. C., 692.

Tbe defendant is entitled to no more favorable instruction under tbe evidence as it appears on tbe record.

Tbe right of self-defense is firmly imbedded in our law, but it rests upon necessity, real or apparent, and tbe decisions are to tbe effect:

1. That one may kill in defense of himself or bis family, when necessary to prevent death or great bodily barm. S. v. Gray, 162 N. C., 608.

2. That one may kill in defense of himself, or bis family, when not actually necessary to prevent death or great bodily barm, if be believes it to be necessary and has a reasonable ground for tbe belief. S. v. Barrett, 132 N. C., 1007.

3. That tbe reasonableness of this belief or apprehension must be judged by tbe facts and circumstances as they appeared to tbe party charged at tbe time of tbe killing. S. v. Blackwell, 162 N. C., 683.

4. That tbe jury and not tbe party charged, is to determine tbe reasonableness of tbe belief or apprehension upob which be acted. S. v. Nash, 88 N. C., 618.

There is a distinction made by tbe text-writers on criminal law, which seems to be reasonable and supported by authority, between assaults witb felonious intents and assaults without felonious intent. “In tbe latter, tbe person assaulted may not stand bis ground and kill bis adversary if there is any way of escape open to him, though be is allowed to repel force by force and give blow for blow. In tbe former class, where tbe attack is made witb murderous intent, tbe person attacked is under no obligation to fly, but may stand bis ground and bill bis adversary, if need be.” 2 Bishop’s Criminal Law, sec. 6333, and cases cited. It is said in 1 East Pleas of tbe Crown, 271: “A man may repel force by force in defense of bis person, habitation, or property against one who manifestly intends or endeavors by violence to commit a felony, such as murder, rape, burglary, robbery, and tbe like, upon either. In these cases be is not obliged to retreat, but may pursue bis adversary until be has secured himself from all danger, and if be kill him in so doing it is called justifiable self-defense.” Tbe-American doctrine is to tbe same effect. See S. v. Hough, 138 N. C., 666, and S. v. Dixon, 75 N. C., 275.

In tbe exercise of tbe right of self-defense, more force must not be used than is reasonably necessary under tbe circumstances, and if exces*8sive force or unnecessary violence be used, the party charged will be guilty of manslaughter, at least (S. v. Robinson, 188 N. C., 784), but the law does not require juries to measure with exactness and nicety the amount of force used, if one is really fighting in self-defense. S. v. Pugh, 101 N. C., 737.

And it has been said that where officers of the law, engaged in making arrests, are acting in good faith, and force is required to be used, their conduct should not be weighed in golden scales. S. v. Pugh, 101 N. C., 737; S. v. McNinch, 90 N. C., 696.

The present case has beeen tried twice in the Superior Court and this is the second appeal here. In my opinion, the alleged error in the charge is too attenuated to warrant a new trial.

ClaRKSON, J., concurs in dissent.