{
  "id": 8616931,
  "name": "STATE v. KENNETH PORTER",
  "name_abbreviation": "State v. Porter",
  "decision_date": "1953-12-02",
  "docket_number": "",
  "first_page": "735",
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name": "N.C."
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  "last_updated": "2023-07-14T17:58:50.226870+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. KENNETH PORTER."
    ],
    "opinions": [
      {
        "text": "BaeNiiill, J.\nDefendant assigns as error \u201cthe failure of the Judge to charge the jury in accordance with the provisions of G.S. 1-180 as amended by Chapter 107 of the General Sessions Laws of 1949; as shown by ExceptioN 5.\u201d Exception 5 specifies (1) a failure to fully instruct the jury on the elements constituting a battery, (2) a failure to instruct the jury that in view of the dangerous and violent assault with a deadly weapon being made on him by the prosecutrix, the defendant had a right to defend himself, and (3) a failure to charge the law on the evidence offered by him on this aspect of his defense.\nThese are the only assignments of error discussed in the brief. The others are deemed to be abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 562; Bank v. Snow, 221 N.C. 14, 18 S.E. 2d 711; Swinton v. Realty Co., 236 N.C. 723, 73 S.E. 2d 785; S. v. Jones, 227 N.C. 94, 40 S.E. 2d 700.\nThe exceptive assignments of error relied on by defendant are without substantial merit. We may concede that the prosecutrix struck the first blow as testified by defendant and his witnesses. Even so, on his own statement, he is not in position to rely on the plea of self-defense. He entered upon the premises of prosecutrix in a drunken condition, he refused on demand to leave, and he used language which was calculated to provoke an assault, and there is no evidence he quitted the combat or retreated. S. v. Crisp, 170 N.C. 785, 87 S.E. 511, and cases cited; S. v. Robinson, 213 N.C. 273, 195 S.E. 824; S. v. DeMai, 227 N.C. 657, 44 S.E. 2d 218. Even then the court fully and accurately reviewed defendant\u2019s version of tbe occurrence and instructed tbe jury in effect that if they found tbe facts to be as testified by defendant and bis witnesses, or if sucb testimony, wben considered along witb tbe other evidence, raised a reasonable doubt in tbeir minds, they should return a verdict of not guilty. Tbe court\u2019s charge on this aspect of tbe ease was as favorable to defendant as be bad any right to expect or demand.\nTbe first clause in tbe court\u2019s definition of an assault and battery, standing alone, is erroneous. When, however, tbe charge as to what constitutes an assault and battery is considered contextually, it correctly defines tbe offense. Vincent v. Woody, ante, p. 118; In re Humphrey, 236 N.C. 142; Macon v. Murray, 236 N.C. 484.\nEssentially, this case is a case of controverted facts. Tbe jury beard tbe evidence and, upon the facts found therefrom, returned a verdict of guilty. No substantial error appears in tbe charge of tbe court, and the record fails to disclose sufficient cause for disturbing the verdict rendered. We must, therefore, sustain tbe trial.\nNo error.",
        "type": "majority",
        "author": "BaeNiiill, J."
      }
    ],
    "attorneys": [
      "Attorney-General McMullan, Assistant Attorney-General Bruton, and Gerald F. White, Member of Staff, for the State.",
      "Welling \u25a0& Welling for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE v. KENNETH PORTER.\n(Filed 2 December, 1953.)\n1. Criminal Haw \u00a7 79\u2014\nExceptive assignments of error not discussed in the brief are deemed abandoned. Rule of Practice in the Supreme Court No. 28.\n2. Assault \u00a7\u00a7 9a, 14b\u2014\nWhere the evidence is to the effect that defendant entered upon the premises of prosecutrix in a drunken condition, refused on demand to leave; and used language calculated to provoke an assault, defendant may' not rely upon the plea of self-defense even though prosecutrix struck the first blow; there being no evidence he quitted the combat or retreated, and therefore the court is not required to instruct the jury on this defense.\n3. Criminal Haw \u00a7 81c (2) \u2014\nWhen the charge, construed contextually, is without error, an exception thereto cannot be sustained.\nAppeal by defendant from Whitmire, Special J., 31 August 1953 Term, MeckleNbueg. No error.\nCriminal prosecution heard on appeal under a warrant which charges that defendant, a male person over eighteen years of age, did unlawfully assault one Eosa Wilkes, a female.\nEosa Wilkes occupies Apartment 1 in a building located on East First Street in Charlotte. On 18 July 1953, about 8 :00 p.m., defendant, while under the influence of intoxicating liquor, walked up on her porch and took a seat. He began to curse and call her vile names. She repeatedly asked him not to curse in the presence of her little girl (nine years old) and to leave her premises. He consistently refused to leave, and said, \u201cI\u2019m not going no damn where,\u201d and grabbed the little girl by the hair and snatched it to the extent that she screamed. Rosa Wilkes then said she would go call \u201cthe law.\u201d He then \u201cwhipped off the porch and stood at the corner.\u201d When she started to call officers, he grabbed her with his left hand and struck her with .his right fist. A general affray resulted. \u201cWe fought and fought until the police came.\u201d\nRosa Wilkes testified: \u201cHe hit me with his fist and he kind of addled me. He hit me here and that\u2019s the time I started fighting and fending for myself. We fought and fought\u201d until an officer arrived.\nThe defendant admitted that he had been drinking and that he went on the porch of the apartment occupied by the prosecutrix. He testified he went to pay for some whiskey he bought during the week and to get some more; that he cursed and she asked him not to curse any more; that she had a Nehi bottle and she struck him with it; and that he did not strike her, but only held her to keep her from striking him again.\nThe jury returned a verdict of guilty. The court pronounced judgment on the verdict and defendant appealed.\nAttorney-General McMullan, Assistant Attorney-General Bruton, and Gerald F. White, Member of Staff, for the State.\nWelling \u25a0& Welling for defendant appellant."
  },
  "file_name": "0735-01",
  "first_page_order": 785,
  "last_page_order": 787
}