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

June 6, 1930 · Supreme Court of North Carolina

198 N.C. 762

STATE v. JIM WISHON.

(Filed 6 June, 1930.)

1. Homicide A a — In this case held: admission of testimony of threats against the deceased was not error.

Testimony of threats against the deceased made by the defendant two years prior to the homicide may be received in evidence as corroborative testimony of evidence of threats made thereafter, and where the defend-arit admits lie liad “words” with the deceased, and that the killing occurred at the first subsequent meeting between him and the deceased, the admission of such testimony will not be held for reversible error on the defendant’s appeal from a conviction of murder in the second degree, the testimony being evidence of premeditation and deliberation constituting murder in the first degree of which the defendant was acquitted.

3. Criminal Law I g — Inadvertence in charge held not to constitute reversible error where jury could not have been misled thereby.

Where in a charge to the jury upon a prosecution for homicide the court inadvertently uses the word “choked” in defining legal provocation which would reduce the crime from murder in the second degree to manslaughter, when the defendant had testified that the deceased assaulted him with a knife, the inadvertence will not be held for reversible error when it is apparent that the jury were not misled thereby and a definite application of the principal to the facts of the case was later made by the court.

3. Homicide E a — Charge of the court on the law of self-defense held not to contain reversible error.

Where in stating the general principles of the law of self-defense the court does not accurately instruct the jury as to the defendant’s duty to retreat, the charge will not be held for reversible error where in applying the principles to the evidence the court correctly charges that the defendant could stand his ground if he was without fault and if the deceased attacked him with a knife and put him in fear of great bodily harm or death, and if the defendant had reasonable grounds for such fear.

Appeal by defendant from Harwoocl, 8fecial Judge, at August Term, 1929, of MacoN. No error.

Tbe defendant was convicted of murder in tbe second degree. Late in tbe afternoon, on 9 July, 1929, tbe defendant and tbe deceased met eacb other in a public road. 'Tbe defendant was walking; tbe deceased was riding a mule. Tbe defendant admitted tbat wben tbey met be shot and killed, tbe deceased witb a pistol, but contended tbat tbe deceased assaulted bim witb a knife. He contended tbat be bad billed tbe deceased in self-defense. Evidence relevant to tbe exceptions is set out in tbe opinion.

Attorney-General Brummitt and Assistant Attorney-General Nash for the State.

B. D. Sislc, J. N. Moody and Edwards & Leatherwood for defendant.

Adams, J.

Tbe deceased as tbe overseer of a public road cut down a chestnut tree on tbe defendant’s land. A witness for tbe State testified tbat after tbe tree bad been cut and about two years before tbe homicide be beard tbe defendant say, “I guess Mr. Solesbee (tbe deceased) thinks it is all over, but I will get bim some time or another.” Tbe defendant excepted on tbe ground that tbe threat was too remote to be admissible. Joe Teague, another witness for tbe State, testified that about a year before tbe trial tbe defendant said in bis presence that “Pink Solesbee (tbe deceased) bad done him damage cutting timber, and be was going to get even with him one way or another.” Tbe defendant admitted be “bad bad words” with tbe deceased concerning tbe tree, and testified that tbe homicide occurred at their first subsequent meeting.

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

In defining tbe legal provocation which will reduce murder in tbe second degree to manslaughter, tbe judge told tbe jury that mere words, however abusive, would not mitigate the homicide, but that an assault would; that there was legal provocation if tbe deceased laid hands upon tbe defendant against bis 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 óf 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 barm or loss of life (S. v. Clark, 134 N. C., 698); but in applying tbe principle to tbe evidence be accurately instructed tbe jury in these words: “If tbe prisoner was without fault and tbe deceased, Pink Solesbee, assaulted him with a knife, and by reason of such assault tbe prisoner actually apprehended and bad reasonable grounds to apprehend that bis life was in danger or that be was in danger of great bodily barm, and it appeared to him to be reasonably necessary to shoot tbe deceased, be was not required as a matter of law to retreat or withdraw from tbe combat, but could stand bis ground and, if necessary, even pursue bis assailant and take bis life in tbe protection of bis own life or to save bis person from serious injury.” S. v. Dills, 196 N. C., 457. For this reason tbe twelfth exception is overruled. Tbe remaining assignments are without merit. We find

No error.