Indictment — Murder — Manslaughter — Excusable Homicide.
1. On a trial for murder, if it appears that the prisoner saw the deceased in his (prisoner's) house with his arms around the neck of prisoner's wife, and thereupon entered the house, when the deceased came at him with a knife, and the prisoner killed him, it is manslaughter.
2. If A., on entering his own house, is assailed by another with a knife, and thereupon enters into a fight with him, standing not entirely on the defensive, and kills him, it is at the most manslaughter.
3. If in such case A. stands upon the defensive and does not fight until he is attacked and threatened with death or great bodily harm, when to save himself he kills his assailant, it is excusable homicide, even if A. does not turn and flee out of the house.
READE, J.
1. "Should he deal with our sister as with an harlot?" is the voice of unrestrained human nature since Shechem defiled the daughter of Jacob and was slain by her brothers. Gen., ch. 34.
We have restrained human nature in so far as we say, You shall not slay in redress of a past wrong; but if you slay the wrongdoer in the very act, it will not be murder, but manslaughter. The redress for past offenses must be sought through the process of the court.
In the case before us the prisoner looked through a crack of his house, and saw the deceased, whom he had before suspected, with his (519) arms around his wife's neck, and saw enough to satisfy him, and ran around to the door and into his house, when the deceased came at him with a knife, and he killed him. The situation was not the very act, but it was severely proximate, and fine distinctions need not be made. This is clearly not murder, but manslaughter. S. v. Samuel, 48 N.C. 74; S. v. John, 30 N.C. 330.
2. Leave adultery out of the question, then we have this case: The deceased was in the prisoner's house in a hostile attitude, and upon the prisoner's entering, came at him with a knife, a deadly weapon, and the prisoner, from the necessity to save himself, killed him.
If upon the prisoner's entering his house and being assailed by the deceased with a knife, he entered into a fight with the deceased and stood not entirely on the defensive, and in the fight slew the deceased, it would be manslaughter at the most. But if the prisoner stood entirely on the defensive and would not have fought but for the attack, and the attack threatened death or great bodily harm, and he killed to save himself, then it was excusable homicide, although the prisoner did not run and flee out of his house. For, being in his own house, he was not obliged to flee, but had the right to repel force with force, and to increase his force, so as not only to resist, but to overcome the assault.
In not giving the prisoner the benefit of these principles his Honor erred.
We have assumed the facts to be as stated above, not because they were facts, but because the State offered in evidence the declarations of the prisoner, and he stated the facts to be as we have stated them. And the prisoner had the right to have the law declared upon the hypothesis that the facts were as he had stated them. What the facts really were was a question for the jury.
PER CURIAM. Venire de novo.
Cited: S. v. Kennedy, 169 N.C. 295.
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