STATE v. ROWE

1. Appeal and Error — Courts — Improper Remarks — Prejudice Not Shown.

A remark by the trial judge to the sheriff in the presence of the jury upon a trial for homicide, after four counsel had addressed them, the last being one of the defendant's, "You can given the jury water. And, gentlemen of the jury, if you wish to retire to your room you can do so for a few minutes. We have no band to play between the speeches." makes it incombent upon the complaining party to show that it was prejudicial, and, nothing else appearing, it does not constitute reversible error.

2. Homicide — Provocation — Words Spoken — Conditions — Questions for Jury.

Upon a trial for a homicide, when unfriendly relations have been shown to have previously existed between the prisoner and deceased, and each had been told by the other never to speak to him again, the disagreement having arisen from the deceased's driving over the clover patch of the prisoner along the side of a road, where the deceased had been forbidden by the prisoner to drive, it is for the jury to say, under the plea of self-defense, and under all the facts and circumstances, whether the prisoner's words first spoken to deceased, "You are not doing what you promised to do, keeping off the clover," were sufficient to provoke an assault made by the deceased upon him, resulting in a fight causing the death of the former.

3. Instructions — Prayers — Substance Given — Appeal and Error.

When the trial judge instructs the jury substantially as requested in special instructions, it is sufficient.

4. Homicide — Self-defense — "Sudden" — Words and Phrases — Harmless Error.

A charge by the trial judge to the jury following in other respects the principles of law applicable to self-defense, upon a trial for a homicide, is not erroneous because of an instruction that if the assault on the prisoner was "sudden, serious, and continuous," he had the right to kill in defense of his person, the instruction being favorable to the prisoner.

5. Same — Elements of Self-defense.

An instruction that the prisoner upon trial for homicide under the plea of self-defense had a right to stand his ground and resist the attack upon him, even to the staying of his adversary, provided the assault was "sudden, serious, and continuous," is erroneous, for it leaves out of consideration the question as to how serious the assault was, and as to whether the deceased intended to kill or to inflict great bodily harm, or whether at the time the assault was made it was calculated to excite in the prisoner's mind a reasonable apprehension of death or great bodily harm; but the error being in favor of the prisoner, he has no right to complain on appeal.

6. Homicide — Deadly Weapon — Presumptions — Burden of Proof.

The killing with a deadly weapon raises at least the presumption of murder in the second degree, placing the burden upon the prisoner to satisfy the jury that such facts and circumstances of mitigation or justification existed as will excuse the homicide or reduce its grade to manslaughter.

7. Same — Manslaughter — Harmless Error.

When the jury upon a trial for homicide with the plea of self-defense interposed, have, upon sufficient evidence, accepted the theory of the State, that the prisoner did not kill in self-defense, and it appears that he used a deadly weapon, and slew the deceased with it, a verdict for manslaughter was not improper.

8. Same — Evidence.

In this case there was evidence that the prisoner pursued and killed the deceased by firing a shotgun at him without any real or apparent necessity for the act as a measure of self-defense, that being the only plea interposed; that he twice snapped the gun at the 16-year-old son of deceased; that neither the deceased nor his son was armed; that the prisoner and his brother, who was with him, then ran away, giving as the reason for their sudden flight, which the jury rejected, that they were afraid that the boy would shoot them with a pistol; they said he had one, which he did not have: Held, a conviction for manslaughter would not be disturbed on appeal, the trial in other respects being free from error.

WALKER, J.

After stating the case: The remark of the judge to the jury is severely criticised by counsel as an intimation by him that the case was being argued by defendant's counsel at too great length; but we cannot draw the inference from it. Counsel for the State might just as well complain that it was directed against them. It seems to have been made indifferently. We are not informed by the record what elicited the remark, and we are unable to see that it was prejudicial to the defendant. It may have been so, but it is incumbent upon him (445) to show it. We will not presume error. S. v. Tyson, 133 N.C. 692; S. v. Davis, 134 N.C. 633; S. v. Lance, 149 N.C. 551; S. v. Plyler, 153 N.C. 630.

But it was strenuously contended and argued before us with much force and plausibility, that the words of the defendant, addressed to the deceased, were not calculated, nor could they have been intended, to provoke a difficulty, and, therefore, if the jury accepted the defendant's version of the facts, he was without fault, while the deceased made a sudden and deadly assault upon him, thus making complete the right of self-defense. Whether language is provocative or not, cannot always be determined by a mere consideration of the words by themselves. It is sometimes necessary, in order to ascertain the meaning or intention of the speaker, or the probable effect of what is said upon the person to whom he has spoken, that we should view them in their proper setting — the circumstances and surroundings of the parties, their previous relations to each other, and the state of their feelings. What is said by a friend may pass unnoticed, while if the same words are uttered by an enemy, they are like a spark, though small it be, falling into powder, and the explosion quickly follows. In such a case, a single word, though apparently innocent and harmless, will arouse the human passions of anger and resentment. An illustration may be found in McGrew v. State, 49 S.W. Rep., 226, in which it appeared that defendant and deceased being unfriendly, had met casually in a saloon. Defendant ordered a glass of Dutch beer, whereupon deceased said: "I will take a glass of American beer," and a fight ensued. It was contended that the words of the deceased were not calculated to provoke a difficulty, but the court ruled otherwise, and said: "While the act of provocation must be confined to the time when the homicide was committed, yet we do not understand by this that we cannot look back to facts transpiring before this, the course of conduct of the parties, and their former conversations, in order to shed light upon and render significant some act or declaration done at the time of the homicide." The evidence in the case shows that the deceased had previously quarreled with the defendant about this same matter, and each had ordered the other (446) not to speak to him. They were enemies, and the defendant should have known and did know of this state of feeling, at the time he spoke to the deceased about driving over his "clover patch." According to his own testimony, he accused the deceased of bad faith, in that he had deliberately broken his promise not to injure his grass and clover, and he should have known, if he did not know, that such language was calculated to provoke a difficulty, as deceased had quarreled with him before under like circumstances, and they would have fought then if the defendant, as he says, had not exercised great self-control. The court properly instructed the jury to consider the evidence and decide whether or not the words were calculated and intended to bring on a fight, and the exception to this part of the charge must be overruled.

The defendant was entitled to the instruction requested by him and which we have set out in the statement of the case, if he was entitled to any which he asked to be given; but while the judge did not use the language of the prayer, as he was not required to do so, we think the substance of the instruction was given in the general charge to the jury, and that was a sufficient response to the prayer. It may well be said that the charge of the court was favorable to the defendant, as much so as he had any right to expect, for the jury were told that the deceased was where he had a right to be, and that if a "sudden, fierce, and continuous assault was made upon him with a deadly weapon," the law permitted him "to stand his ground" and slay his adversary, and he was not required to wait until the opportunity for successful defense had passed, but might act at once upon the facts as they appeared to him, and if the jury found, when the evidence is thus considered, that is, by putting themselves in his place, that the circumstances were such as to put a man of ordinary firmness in fear of death or great bodily harm, the killing of the deceased was excusable, and they should acquit the defendant.

The following instruction was still more favorable: "If you find from the evidence that the defendant was in a place he had a right to be — and I charge you he was in a place where he had a right to be, being (447) on his own land — and you further find that he was reasonably without fault in provoking the difficulty, and that Filmore Rose made a sudden, serious, and continuous assault upon him, then the defendant had the right to stand his ground and shoot the deceased to save his own life or himself from serious bodily harm." It will be observed that, in the last instruction, the court did not describe the kind of assault which would justify the taking of human life, with great particularity. He did not tell the jury that it must have been committed with intent to kill or even to inflict great bodily harm, but that if it was "sudden, serious, and continuous," and without regard to its effect upon the defendant's mind or whether calculated to excite a reasonable apprehension of death or grievous bodily injury, it would be sufficient to justify him in "standing his ground" and killing his adversary. The word "serious" has no fixed or technical meaning in the law, but is rather general and indeterminate in its signification. It may, when applied to an assault, include one made with the intent to kill or to inflict great bodily harm, or it may not, and the jury should have been instructed more definitely upon the character of assault that will justify a killing in self-defense; but this omission was clearly in favor of the defendant, and he has no just cause of complaint. The defendant certainly has no ground upon which to base an exception that the case has not been tried in accordance with the law as declared in former decisions of this Court. S. v. Dixon, 75 N.C. 275; S. v. Blevins, 138 N.C. 668; S. v. Hough, ibid., 663.

The killing with a deadly weapon having been admitted, the defendant was guilty, at least, of murder in the second degree, nothing else appearing; and the burden accordingly rested upon him to satisfy the jury that such facts and circumstances of mitigation or justification existed as would excuse the homicide or reduce its grade to manslaughter. S. v. Brittain, 89 N.C. 481; S. v. Barrett, 132 N.C. 1005; S. v. Capps, 134 N.C. 622; S. v. Fowler, 151 N.C. 731. There was some evidence to show that the defendant slew Filmore Rose in self-defense, and it was fairly submitted to the jury, under instructions which were at least free from any error unfavorable to the defendant. The jury decided the fact against him and accepted the theory of the State and the (448) evidence in support of it, that there was no felonious assault upon the defendant prior to the homicide. This being so, he was guilty either of murder in the first or, at least, in the second degree, or of manslaughter. There was ample evidence upon which a conviction of either of the degrees of murder would have been warranted, but the jury, with merciful regard for the weakness and frailty of human nature, convicted of the inferior felony.

What was said in S. v. Fowler, 151 N.C. 731 (by Justice Brown,), is peculiarly applicable to this case: "When, as in this case, the plea is self-defense, and the killing with a deadly weapon is established or admitted, two presumptions arise: (1) that the killing was unlawful; (2) that it was done with malice. An unlawful killing is manslaughter, and when there is the added element of malice, it is murder in the second degree. When the defendant takes up the laboring oar he must rebut both presumptions — the presumption that the killing was unlawful and the presumption that it was done with malice. If he stops when he has rebutted the presumption of malice, the presumption that the killing was unlawful still stands, and, unless rebutted, the defendant is guilty of manslaughter. This is a fair deduction from the cases in this State. S. v. Hagan, 131 N.C. 802; S. v. Brittain, 89 N.C. 501, 502. At the request of defendant, the judge charged the jury very explicitly that if they should find from the evidence offered by the defendant that the killing occurred under circumstances claimed by him and testified to by his witnesses, they should return a verdict of not guilty. The jury discarded defendant's plea, and if, as now argued by him, there was nothing in the evidence to warrant a verdict of manslaughter, it was the duty of the jury to convict of murder in the second degree. It necessarily follows that, under such circumstances, the defendant can not complain of a verdict for manslaughter, a lesser degree of homicide. An error on the side of mercy is not reversible." But, as also said in S. v. Fowler, we think there is, in this case, evidence upon which a verdict of manslaughter may well be supported, and it is not (449) necessary to apply the rule as broadly stated in S. v. Quick, 150 N.C. 820. The jury evidently concluded that the defendant had entered into the fight willingly, if not with malice or with deliberation and premeditation. There was evidence on the part of the State that the defendant pursued Filmore Rose and shot him, when there was no real or apparent necessity for doing so in order to defend his own person, and that after killing him he turned and snapped his gun twice at his son, a boy 16 years old. There was further evidence that Filmore Rose was not armed and that defendant must have known it, as the jury rejected his statement of the facts. He and his brother ran immediately after this tragedy, he says in fear of this boy, whom he thought would take the pistol from his father's pocket, when the jury find that there was none, and shoot him. There was evidence of other facts and circumstances strongly tending to show, not only the defendant's willingness, but his eagerness for the fray. His misfortune is that the jury did not credit his story, but repudiated it and the whole of it. He was fortunate, though, in the fact that the jury, having disbelieved him, did not convict him of murder.

We have not set out the charge of the court in its entirety. If we had done so, it would appear, more clearly than it does in the few passages taken therefrom, that the jury were clearly and fully instructed as to the law and its application to the facts and that the defendant was treated with perfect fairness and impartiality. We need not consider the other numerous exceptions, as they cannot be sustained in view of what we have already said, and we find no reversible error in the ruling to which they were taken.

No error.

Cited: S. v. Vann, 162 N.C. 542; S. v. Blackwell, ibid., 684; S. v. Lane, 166 N.C. 339; S. v. Robertson, ibid, 365; S. v. Cameron, ibid., 384; S. v. Heavener, 168; N.C. 164; S. v. Hand, 170 N.C. 706; S. v. Crisp, ibid., 791; S. v. Foster, 172 N.C. 964.

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