#### STATE v. HENRY MOSLEY.

(Filed 23 March, 1938.)

1. Homicide § 16—

When an intentional killing of a human being with a deadly weapon is admitted or established, the law implies malice, constituting the offense murder in the second degree, with the burden on defendant to show to the satisfaction of the jury matters in mitigation or excuse.

2. Homicide § 11—

When a person is without fault in bringing on an affray, and a murderous assault is made upon him, he is not required to retreat, hut may stand his ground and kill his adversary if necessary in his self-defense.

3. Same — Right to kill in self-defense rests upon necessity, real or ap-

parent.

One may kill in self-defense if he is without fault in bringing on the affray, and it is necessary or appears to him to be necessary to kill his adversary to save himself from death or great bodily harm, the reasonableness of his apprehension being for the jury to determine from the circumstances as they appeared to him.

4. Homicide §§ 7, 11—

If excessive force or unnecessary violence is used in self-defense, defendant is guilty of manslaughter at least.

5. Homicide § 11—

Mere language is not sufficient to support the plea of self-defense, but it is required that defendant be put in fear of death or great bodily harm by an actual or threatened assault.

6. Homicide §§ 11, 27f — Fear either of death or great bodily harm will justify Wiling in self-defense.

In this prosecution for homicide, the court instructed the jury that defendant would be justified in killing his adversary if defendant believed, and had reasonable grounds to believe, that the act was necessary to save himself from death. Held: The instruction must be held for error as failing to include, as a basis of the plea of self-defense, reasonable apprehension of great bodily harm, even though the court elsewhere correctly charged the jury on the question, since it cannot be ascertained which instruction the jury followed in arriving at its verdict.

*3057. Criminal Law §§ 53gr 81c—

An erroneous instruction on a substantive feature of tbe case constitutes prejudicial error even though correct instructions on the point are elsewhere given in the charge, since it must be presumed on appeal that the jury were influenced by the erroneous portion in arriving at its verdict.

Babnhux, J., dissents.

Appeal by defendant from Harding, J., at May Term, 1937, of Eoesyth.

Criminal prosecution tried upon indictment charging defendant with tbe murder of one Clarence Black.

Tbe defendant pleaded not guilty, and relies upon self-defense.

Tbe State offered evidence tending to show that: On tbe afternoon of Easter Monday, 1937, tbe defendant shot one Clarence Black with a pistol, inflicting a wound from which be died almost instantly. Tbe scene of the shooting was on tbe north sidewalk of 8th Street, between Ridge Street on tbe west and Highland Avenue on tbe east, in front of a beer parlor in "Winston-Salem. Defendant, on returning from Green-ville, S. C., near midnight on Sunday found Clarence Black in defendant’s home with bis wife. Black came out tbe front door, passing defendant, and left. Between 8 and 9 o’clock tbe next morning defendant went to tbe home of Mary Perkins on E. 8th Street, where be was accustomed to visit. While there, in conversation with Robert Martin, be said that be was worried, that when be came home tbe night before Clarence Black came out and ran; that on being asked what be was going to do about it, defendant said, “I don’t know what I might do”; that on being advised to “just give it up and not do anything about it,” be said, “That is true. I am going to see him and have a talk to him. If be talks like a man I ain’t going to do anything. If be talks to me like junk I am going to kill him.” Then in the afternoon, between 3 and 4 o’clock, Clarence Black and four others were standing in front of tbe beer parlor, tbe scene of tbe shooting, two next to tbe building and Black and two others at edge of sidewalk. Defendant came from Highland Avenue on to and walked west down 8th Street in “a slow gait with bis bead kind of down,” bis bands in bis front pocket, an overcoat thrown around bis shoulders and bis body coat buttoned up.” Defendant walked between tbe two groups and asked to speak to Clarence Black. They took two or three steps to tbe west and engaged in a conversation in a low tone, about Black going to defendant’s bouse. Sburley Brown, only eyewitness for tbe State, detailed that part of conversation be says be beard. His testimony differs from statement of defendant, hereinafter referred to, mainly in that be says that immediately before tbe shooting, defendant cursed Black, and said, “You boys get out of tbe way,” and that at that time Black was standing with bis right band in bis front pocket and a cigarette in bis left.

*306R. N. Carroll, police officer, testified for tbe State tbat defendant came into police headquarters Easter Monday night and gave up. At that time he made a statement to the officer which was reduced to writing and signed. The officer testified that defendant said in substance : After describing the incident at his home on Sunday night, the defendant said that he saw Clarence Black the next afternoon about 3 o’clock at the beer parlor on E. 8th Street, near A. Ridge Alley, that he had his pistol in his pants pocket when he saw him; that he called to Black and told him he wanted to talk to him. They stepped off 10 or 12 feet from the.beer parlor; that he asked Black why he didn’t leave his wife alone; that Black told him he had not been bothering his wife; that then Black cursed him, using a. vilely vulgar epithet; that Black put his hand in his bosom; that he shot him twice at a distance of 10 feet, and he fell. The written statement was introduced in corroboration. In it defendant stated: “I then asked him why he kept messing with my old lady. He then went to cursing me and called me a -- — and several other names, and said that he did not go with my old lady. Clarence then commenced to back off with his hand in his bosom. I had my pistol in my right pants pocket and my hand on it. I pulled my pistol when he was about 10 feet away. I shot him twice and he fell.” Defendant offered no evidence.

Yerdict: Guilty. Case remanded at Fall Term, 1937, for correction of record to speak the truth as to verdict. 212 N. 0., 766, 194 S. E., 486. Correction made to read: “Guilty of murder in the first degree.”

Judgment: Death by asphyxiation.

Attorney-General Seawell and Assistant Attorney-General McMullan for the State.

Phin Horton, Jr., John G. Wallace, and Richmond Rucker for defendant appellant.

Winborne, J.

The court below was of opinion that the evidence was sufficient to justify and to require submitting to the jury defendant’s plea of self-defense. With this we agree. However, exceptions to the charge of the court with respect thereto reveals prejudicial error.

The intentional killing of a human being with a deadly weapon implies malice, and, if nothing else appears, constitutes murder in the second degree. When the implication is raised by an admission or proof of the fact of killing, the burden is on the defendant to show to the satisfaction of the jury facts and circumstances sufficient to reduce the homicide to manslaughter or to excuse it. S. v. Robinson, ante, 273, and cases cited.

“Where a man is without fault, and a murderous assault is made upon him, an assault with intent to kill, he is not required to retreat, *307but may stand bis ground, and if be bill bis assailant and it is necessary to do so to save bis own life or protect bis person from great bodily barm, it is excusable homicide and will be so held.” Hoke, J., in S. v. Blevins, 138 N. C., 668, 50 S. E., 763; S. v. Robinson, ante, 273, and cases cited.

Tbe plea of self-defense or excusable homicide rests upon necessity, real or apparent. In S. v. Marshall, 208 N. C., 127, 179 S. E., 427, tbe principle is clearly stated: “The decisions are to this effect:

> “1. That one may kill in defense of himself or bis family when necessary to prevent death or great bodily barm. S. v. Bryson, 200 N. C., 50, 156 S. E., 143; S. v. Bost, 192 N. C., 1, 133 S. E., 176; S. v. Johnson, 166 N. C., 392, 81 S. E., 941; S. v. Gray, 162 N. C., 608, 77 S. E., 833.

> “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., 1005, 43 S. E., 832.

> “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., 672, 78 S. E., 316.

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

In S. v. Cox, 153 N. C., 638, 69 S. E., 419, it is said: “In order to make good tbe plea of self-defense tbe force used must be exerted in good faith to prevent tbe threatened injury, and must not be excessive or disproportionate to tbe force it is intended to repel, but tbe question of excessive force was to be determined by tbe jury.” S. v. Robinson, 188 N. C., 785, 125 S. E., 617; S. v. Terrell, 212 N. C., 145, 193 S. E., 161.

If excessive force or unnecessary violence be used tbe defendant would be guilty of manslaughter at least. S. v. Glenn, 198 N. C., 80, 150 S. E., 663.

“Tbe legal provocation which will reduce murder in tbe second degree must be more than words, as language, however abusive, neither excuses nor mitigates tbe killing, and tbe law does not recognize circumstances as a legal provocation which in themselves do not amount to an actual or threatened assault.” S. v. Benson, 183 N. C., 795, 111 S. E., 869.

In S. v. Barrett, 132 N. C., 1007, 43 S. E., 832, Walker, J., speaking to tbe question, said: “Tbe defendant’s conduct must be judged by tbe facts and circumstances as they appeared to him at tbe time be committed tbe act, and it should be ascertained by tbe jury, under evidence *308and proper instructions of tbe 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 its 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 assault 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 turns out afterwards that he was mistaken: Provided, always, the jury finds that his apprehension was a reasonable one and that he acted with ordinary firmness.” S. v. Waldroop, 193 N. C., 12, 135 S. E., 165; S. v. Terrell, supra.

Applying these principles, exception is well taken to that portion of the charge which reads: “I might meet a man out here on the street and he says, ‘Throw up your hands; I am going to kill you.’ I think he is and believe it. He points a pistol in my face and tells me he is going to kill me, and I shoot him first. It may be he was not going to kill me; that he was playing a joke on me; just trying to have a little fun, and there was no danger at all. If I had reasonable grounds to believe that I was in danger, about to be killed and in good faith believing I was, I have the right to use reasonable force to protect myself. On the other hand, a man meets me on the street and tells me to throw up my hands, he is going to kill me and he meant to do so. I was in actual danger of being killed instantly. If I did not believe it and thought he was joking or playing with me and did not believe it, but because he had thrown a pistol on me on the street in the presence of my acquaintances and made me mad and I flew into a temper and knocked him down and killed him, then I would be guilty at least of manslaughter, because I did not believe I was going to be killed. A man must in good faith believe he is going to be hilled (italics ours) ; then he has the right to use such force as he believes to be necessary to protect himself.”

A similar charge was considered in S. v. Waldroop, supra. What is said there is applicable here. There, as here, the right of self-defense was made to depend entirely upon a reasonable belief that defendant was about to be killed. Here it is specifically declared: “A man must in good faith believe he is going to be killed; then he has the right to use such force as he believes to be necessary to protect himself.” The error in the instruction is the omission of any reference to the apprehension of great bodily harm. This is as much an element of defense *309 as the apprehension of death. Tbe test is, did the defendant have reasonable apprehension to believe, and did he believe, that his life was in danger or that he was about lo receive great bodily harm?

As in tbe Waldroop case, bere there appears in other portions of tbe charge a correct statement of tbe principle of law. Adams, J., speaking to tbe question, there said: “In substance tbe two are contradictory— one including both elements and tbe other only one. £It is well settled that when there are conflicting instructions upon a material point a new trial must be granted, as tbe jury are not supposed to be able to determine when tbe judge states tbe law correctly or when incorrectly. We must assume in passing upon motion for new trial that tbe jury were influenced in coming to a verdict by that portion of tbe charge which is erroneous.’ Edwards v. R. R., 132 N. C., 99; S. v. Barrett, supra.”

For error in tbe charge as indicated there will be a

New trial.

BaeNhill, J., dissents.