#### STATE v. MARSHALL DICKEY.

(Filed 2 May, 1934.)

1. Homicide G d — Where defendant relies upon self-defense, testimony of nncommunicated threats made by deceased is competent.

Where defendant in a prosecution for homicide contends he hilled deceased in self-defense, and introduces evidence in support of the contention, testimony that on the afternoon preceding the night on which the killing occurred deceased had threatened to kill defendant upon sight is competent in support of the contention of self-defense, although the threat was not communicated to defendant prior to the homicide, and the exclusion of such evidence will be held for reversible error.

2. Criminal Law L e — Exclusion of testimony is not cured by admission of testimony of another' witness to same act done on different occasion.

In this prosecution for homicide defendant contended that he killed deceased in self-defense. The court admitted without objection testimony of one witness that deceased, shortly before the homicide, had made threats against defendant • which were not communicated to defendant prior to the homicide, and excluded testimony of another witness of such threats made by deceased on a different occasion shortly before the homicide: Held,, the error in the exclusion of the testimony of such threats by one of the witnesses was not cured by the admission of the testimony of the other witness, defendant being entitled to the credibility and weight of the testimony of the witness whose testimony was excluded.

Appeal by defendant from Stack, Jat January Term, 1934, of MeckleNbubg. New trial.

Tbis is a criminal action in which the defendant was tried on an indictment for the murder of Edith Proctor, on 19 November, 1930, in Mecklenburg County.

When the action was called for trial, the solicitor for the State announced to the court, that on the evidence which he would offer at the trial, he would not ask for a verdict of guilty of murder in the first degree, but would ask for a verdict of guilty of murder in the second degree, or of manslaughter, as the jury might find the facts from all the evidence. The defendant entered a plea of “not guilty.”

*418Tbe evidence for tbe State tended to sbow tbat at about 8 :00 o’clock p.m., on Saturday, 19 November, 1930, tbe defendant went to tbe borne of Editb Proctor, in Mecklenburg County, and after knocking twice at ber door, opened tbe door, and entered tbe bouse, with a knife in bis band. He said to Editb Proctor, wbo was in tbe bouse, “What in tbe bell do you mean ?” As sbe walked toward bim, be met ber, and knocked ber down, and threw a lamp at ber. He tben cut ber in and across her abdomen. Sbe bled profusely from tbe wound, and died witbin about three minutes, after tbe defendant bad assaulted and cut ber. 'When tbe defendant was arrested, be bad a deep cut in bis chest, inflicted apparently by a knife. Defendant told tbe oificers wbo arrested bim, tbat tbe deceased bad cut bim on bis band, and bad stabbed bim in tbe chest. Neither of tbe oificers saw any wound on bis band. They did see a wound on bis chest.

Tbe defendant as a witness in bis own behalf testified as follows:

“I am twenty-nine years old. I went to Editb Proctor’s bouse about 8:00 o’clock on Saturday night, 19 November, 1930, to get my laundry from Lillie Ingram, wbo lived in tbe bouse with Editb Proctor. Sbe bad been washing for me about four weeks. When I got there I knocked at tbe door, and Editb said, ‘Come in.’ I walked in. Sbe shut tbe door and said, ‘Wbat do you want ?’ I said, ‘I came to get my laundry. Where is Lillie?’ Editb answered, ‘You get to bell out of here.’ I said, ‘Let me out,’ and started toward tbe door. Sbe cut me on tbe band. I said, ‘Let me out, girl.’ Sbe cut me on tbe band again. I backed and started to go out of tbe bouse. Sbe stabbed me when I reached for tbe door. I bad done nothing except ask for Lillie. Every time I would reach for tbe door sbe would cut me. I was bleeding fast, and thought sbe was going to kill me. I ran my band into my pocket, and opened my knife. I was begging ber all tbe time to let me out. Sbe made another dive at me, and I cut ber. I did not try to kill ber. I tried to keep her from killing me. When I went out tbe door, Editb threw a lamp at me. When I left tbe bouse sbe was standing up. Sbe looked as if sbe might have been drinking. Sbe cursed me and seemed to be mad. I guess sbe was mad at me, because I was engaged to another girl.”

Evidence offered by tbe defendant tended to corroborate bis testimony as to tbe circumstances surrounding tbe homicide.

Lila Cbisbolm, a witness for tbe defendant, testified as follows:

“I lived close to Editb Proctor. I saw ber on tbat Saturday night at about 1:30 o’clock. Sbe came to my bouse with a switch-blade knife open in ber band, and asked me if I bad seen Marshall Dickey since dark. I told ber ‘No.’ Sbe said sbe was going to find bim, and cut bim when sbe found bim. Sbe was mad when sbe was talking to me. I did not know wbat tbe trouble was between ber and Marshall, but sbe *419was bunting Marshall. I know Lillie Ingrain, and know that she washed for Marshall.”

Pearl Lee Spencer, a witness for the defendant, testified as follows:

“I knew Edith Proctor. I saw her at my house on the afternoon of the day she was killed. She had a knife — a switch-blade knife, about that long.”

Counsel for defendant asked this witness: “What, if anything, did Edith Proctor say to you?” The defendant excepted to the ruling of the court, sustaining the State’s objection to this question. The witness, if permitted by the court would have testified that Edith Proctor said she was going to kill Marshall Dickey as soon as she found him.

On all the evidence submitted to the jury, under the charge of the court, there was a verdict that the defendant is guilty of manslaughter.

From judgment that he be confined in the State’s prison for a term of twenty years, the defendant appealed to the Supreme Court.

Attorney-General Brummitt and Assistant Attorneys-General Seawell and Bruton for the State.

Kirkpatrick & Kirkpatrick and J. M. Scarborough for defendant.

OoNNon, J.

In this case the defendant admitted that he killed the deceased by cutting her with a knife — a deadly weapon. He offered evidence tending to show that at the time he cut the deceased, and inflicted upon her the fatal wound, she was assaulting him with a knife, and that under all the circumstances as disclosed by the evidence, he was unable to escape from the murderous assault the deceased was then making upon him. This evidence was amply sufficient to support the contention of the defendant that he killed the deceased in self-defense, and that for this reason he was not guilty.

In support of his contention that he killed the deceased in self-defense, the defendant offered as evidence the testimony of a witness that shortly before' the homicide, she saw the deceased, and that she then had a knife and said that as soon as she saw the defendant, she was going to cut him. This testimony was admitted without objection on the part of the solicitor for the State, and was submitted by the court to the jury as evidence in behalf of the defendant. There was no evidence tending to show that this threat of the deceased was communicated to the defendant prior to the homicide.

In further support of his contention that he killed the deceased in self-defense, the defendant offered as evidence the testimony of another witness that she saw the deceased during the afternoon preceding the homicide, and that deceased then had a knife, and said that she was going to kill Marshall Dickey, the defendant, as soon as she saw him. There *420was no evidence tending to sbow that this threat was communicated to the defendant prior to the homicide. Upon objection by the State, this testimony was excluded, and defendant excepted. On his appeal to this Court, the defendant assigns the exclusion of this testimony as error. The assignment of error must be sustained.

In S. v. Baldwin, 155 N. C., 494, 71 S. E., 212, it is said: “It was insisted further that his Honor made an erroneous ruling in excluding evidence of certain uncommunicated threats of the deceased uttered shortly before the homicide, tending to show animosity towards the prisoner, and a purpose to do him serious bodily harm. It is now generally recognized that in trials for homicide uncommunicated throats are admissible (1) where they tend to corroborate threats which have been communicated to the prisoner; (2) where they tend to throw light on the occurrence and aid the jury to a correct interpretation of the same, and there is testimony ultra sufficient to carry the case to the jury tending to show that the killing may have been done from a principle of self-preservation, or the evidence is wholly circumstantial and the character of the transaction in doubt. Turpin's case, 11 N. C., 473; S. v. McIver, 125 N. C., 645; Hornegan & Thompson Self-defense, 927; Stokes’ case, 53 N. Y.; Holler v. Stale, Ind., 57; Cornelius v. Commonwealth, 54 Ky., 539. In the present case, while there was evidence, on the part of the State tending to show that the prisoner fought wrongfully, and killed without necessity, there is testimony on his part tending to show a homicide in his necessary self-defense, and the proposed evidence, tending as it did to throw light upon the occurrence should have been received.”

It cannot be held that the error in excluding the testimony of this witness tending to show threats by the deceased to assault the defendant with a knife as soon as she saw him, was harmless for the reason that the testimony of another witness for the defendant tending to show similar threats on another occasion, was admitted and submitted to the jury. In Eaves v. Cox, 203 N. C., 173, 165 S. E., 345, it is said: “Obviously, if a party offers the competent testimony of a given number of witnesses, but the court excludes the testimony of one, even though the testimony of others is admitted without objection, notwithstanding, the offering party is entitled to the credibility and weight of the testimony of the excluded witness.” This principle is particularly applicable in the instant case, where the excluded evidence tended to show threats by the deceased, on a different occasion than that shown by the testimony which was admitted. The defendant is entitled to a new trial. It is so ordered.

New trial.