Homicide — Evidence.
The prisoner and deceased quarreled, and both evinced a willingness to fight, but were prevented by other persons — the prisoner went off, but came back, when the deceased presented a loaded gun and commanded him to stand — the prisoner went into a house near by, but out of sight of the deceased, and procured his gun and returned to the deceased, who immediately fired upon and slightly wounded the prisoner, and then sat his gun down — the prisoner then shot and killed deceased. Held,
1. That the prisoner was at least guilty of manslaughter.
2. That it was not error in the Court to charge the jury that under the circumstances of this case, if they believed the evidence, the prisoner was guilty of manslaughter.
(State v. Kennedy, 91 N.C. 572; State v. McNeill, 92 N.C. 812; State v. Vines, 93 N.C. 493, cited and approved).
MERRIMON, J.
The evidence was plain and direct. It seems that it was not questioned, and obviously the jury believed it. Accepting it as true, and taking the most favorable view of it for the prisoner, he was certainly, at the least, guilty of voluntary manslaughter. The deceased had given him legal provocation; but he slew him — not of necessity — not to save his own life or himself from enormous bodily harm, but unnecessarily in the heat of blood, if not of deliberate purpose. At the time the prisoner fired his gun at and slew the deceased, he was free from present danger, and might easily have abandoned further conflict without exposing himself to danger, and this he must have seen, but he showed no disposition to desist from the fight. On the contrary, he manifested a passionate, if not a deliberate and wicked purpose, to kill.
No man is justified in taking the life of his adversary, if he can avoid it, if he can escape without exposing his own life to serious peril, or exposing himself to great bodily harm. He cannot kill of choice (623) — he can only be justified when he kills of necessity. State v. Kennedy, 91 N.C. 572; State v. McNeill, 92 N.C. 812.
The evidence was simple and direct — there was no conflict in it — no alternative aspects of it to be submitted. It was the province of the jury to believe or disbelieve it, and the Court might, as it did, tell them that if they believed it to be true, the prisoner was guilty. If the evidence was true, the law drew the conclusion as to the offence. State v. Vines, 93 N.C. 493.
There is no error.
No error. Affirmed.
Cited: S. v. Quick, 150 N.C. 824.