State v. . Wishon , 198 N.C. 762 ( 1930 )

The defendant was convicted of murder in the second degree. Late in the afternoon, on 9 July, 1929, the defendant and the deceased met each other in a public road. The defendant was walking; the deceased was riding a mule. The defendant admitted that when they met he shot and killed the deceased with a pistol, but contended that the deceased assaulted him with a knife. He contended that he had killed the deceased in self-defense. Evidence relevant to the exceptions is set out in the opinion. The deceased as the overseer of a public road cut down a chestnut tree on the defendant's land. A witness for the State testified that after the tree had been cut and about two years before the homicide he heard the defendant say, "I guess Mr. Solesbee (the deceased) thinks it is all over, but I will get him some time or another." The defendant excepted on the ground that the threat was too remote to be admissible. Joe Teague, another witness for the State, testified that about a year before the trial the defendant said in his presence that "Pink Solesbee (the deceased) had done him damage cutting timber, and he was going to get even with him one way or another." The defendant admitted he "had had words" with the deceased concerning the tree, and testified that the homicide occurred at their first subsequent meeting.

In S. v. Howard, 82 N.C. 624, threats made twelve months before the homicide were held to be competent. Afterwards, in reference to the question whether threats made two years before the homicide should be admitted, the Court remarked, "We might hesitate to admit evidence of threats to kill the deceased, made two years before the homicide, if they stood alone, without evidence of intermediate and recurring threats." In the present case there is evidence of an intermediate threat made within the time specified in S. v. Howard. Evidence of the threat first made is competent at least in corroboration. S. v. McDuffie, 107 N.C. 885. The defendant's admission that he killed the deceased raised a presumption of malice. His threats were evidence of premeditation and deliberation; but he was not convicted of the capital felony. In S. v. Shouse, 166 N.C. 306, it was said: "But these threats were offered to show premeditation, deliberation, and previous express malice, necessary to convict of murder in the first degree. S. v. Tate, 161 N.C. 280. They were practically irrelevant, unnecessary and harmless, as the prisoner was acquitted of the capital felony." In the admission of evidence relating to the defendant's threats there is, therefore, no error.

In defining the legal provocation which will reduce murder in the second degree to manslaughter, the judge told the jury that mere words, however abusive, would not mitigate the homicide, but that an assault would; that there was legal provocation if the deceased laid hands upon the defendant against his will, or struck at him, or choked him. An exception was taken because there was no evidence that the defendant was choked. But he testified that the deceased was in the act of assaulting him with a knife when the shot was fired; this was legal provocation, and the inadvertent use of the word "choke" could not have misled the jury to the prejudice of the defendant, especially when a definite application of the principle restricted the provocation to the alleged assault with a knife.

In stating the law of self-defense as an abstract principle the trial judge did not accurately point out the distinction between the necessity of retreating in the case of an ordinary assault (S. v. Blevins, 138 N.C. 669), and the right of a person to stand his ground when he apprehends and has reasonable grounds to apprehend that he is about to suffer great bodily harm or loss of life (S. v. Clark, 134 N.C. 698); but in applying the principle to the evidence he accurately instructed the jury in these words: "If the prisoner was without fault and the deceased, Pink Solesbee, assaulted him with a knife, and by reason of such assault the prisoner actually apprehended and had reasonable grounds to apprehend that his life was in danger or that he was in danger of great bodily harm, and it appeared to him to be reasonably necessary to shoot the deceased, he was not required as a matter of law to retreat or withdraw from the combat, but could stand his ground and, if necessary, even pursue his assailant and take his life in the protection of his own life or to save his person from serious injury." S. v. Dills, 196 N.C. 457. For this reason the twelfth exception is overruled. The remaining assignments are without merit. We find

No error.