#### STATE v. COLEY SATTERWHITE.

(Filed 25 November, 1953.)

Assault § 141b: Criminal Law § 53d—

Where defendant introduces evidence supporting- his contention that he was not the aggressor, that he shot his assailant as his assailant was advancing on him with an open knife making an effort to cut him, and that defendant had no way of retreat and shot his assailant only to save himself from great bodily harm, defendant is entitled to have the court submit the question of self-defense to the jury, and an instruction that defendant had attempted to offer evidence of self-defense which was insufficient for that purpose as a matter of law, must be held for reversible error.

Appeal by tbe defendant from Whitmire, Special J., August Regular Criminal Term 1953. MeckleNbukg. New trial.

Tbis is a criminal action in wbicb tbe defendant was tried on a bill of indictment ¿barging bim witb a felonious assault witb intent to kill witb a deadly weapon, to wit, a pistol, on Cecil Ingram causing serious injury not resulting in death. Tbe jury found tbe defendant guilty.

From judgment imposed tbe defendant appeals assigning error.

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

Welling & Welling for defendant, appellant.

PARKER, I.

Tbe evidence for tbe State tended to show that Cecil Ingram, tbe defendant, and some other Negroes were playing “skin”; that tbe defendant accused Ingram of taking $10.00 of bis money from tbe table; that Ingram denied taking it; that tbe defendant cursed Ingram, and shot bim witb a pistol, tbe bullet going through bis body; that Ingram bad no weapon.

Tbe defendant’s evidence tended to show these facts. While they were playing “skin,” tbe defendant shuffled tbe cards, and placed tbe deck on tbe table. Ingram bad four cards, and picked up tbe deck to draw. Tbe *675defendant bad $16.00 on tbe table — a ten and six ones. Ingram picked np tbe ten, put it in bis pocket, and then ran bis band in bis pocket, opened bis knife, and began quarreling with tbe defendant. Tbe defendant said “let’s give him tbe ten.” Ingram said to another player “George, you believe I got tbe ten ?” When George replied “I see’d you when you got it,” Ingram cussed him. Ingram said “I ain’t got tbe ten dollars.” George replied “give tbe man bis ten dollar bill.” Ingram said “look under tbe seat.” Jim, another player, looked, tbe money was not there, and told Ingram “be got bis ten dollar bill.” Ingram bad bis knife open coming on tbe defendant, and tbe defendant shot him; be didn’t try to kill him, but be didn’t want Ingram to cut him with bis knife. Tbe defendant bad no way to get out. On cross-examination tbe defendant said be shot Ingram once; that Ingram was about four feet from hitó, when be shot. In reply to questions by tbe court tbe defendant testified Ingram was coming on him with bis knife open; be saw tbe blade; that Ingram “went to make an effort to cut me with it, but I shot him.” Tbe court asked tbe defendant “be cussed, but be didn’t threaten to cut you ?” Tbe defendant answered “Ob, yes, be was going to cut me, be. said be didn’t have my ten dollars, be cussed then, be was coming on me, and I was seared of that knife.”

Tbe defendant assigned as error No. One this part of tbe court’s charge: “Tbe defendant has attempted to offer evidence of self-defense which, in tbe opinion of tbe court, is not sufficient as a matter of law to constitute self-defense.”

Tbe surrounding facts and circumstances, as shown by tbe defendant’s evidence, tend to show that tbe defendant acted on tbe defensive, and not as an aggressive participant; that be did not shoot the defendant willingly, that is, in tbe sense of its being voluntarily and without lawful excuse; that be bad done nothing to bring on tbe difficulty, and only shot Ingram when be was advancing on him with an open knife making an effort to cut him; that Ingram was only four feet away; that tbe defendant bad no way to get out; that tbe defendant shot Ingram only once because be didn’t want to be cut with tbe knife.

Under our cases tbe defendant was entitled to have tbe issue of self-defense passed upon by a jury. S. v. Bost, 192 N.C. 1, 133 S.E. 176; S. v. Godwin, 211 N.C. 4-19, 190 S.E. 761; S. v. Greer, 218 N.C. 660, 12 S.E. 2d 238 (wherein it was held that under tbe evidence, it was tbe duty of tbe court, without special request therefor to instruct tbe jury upon tbe law of self-defense); S. v. Absher, 220 N.C. 126, 16 S.E. 2d 656.

Tbe Attorney-General relies upon S. v. Randolph, 228 N.C. 228, 45 S.E. 2d 132. Tbe facts in that case are different, for taking tbe defendant’s version be pulled out bis knife, opened it, jumped out of tbe truck, *676and met Bolton in the street, which, clearly showed he entered the fight voluntarily and without lawful excuse.

The court committed error in failing to instruct the jury on the law of self-defense in connection with the defendant’s evidence, and he is entitled to a new trial. It is so ordered.

New trial.