STATE v. CLARK

WALKER, J.

The defendant was indicted for the murder of Charles Stanberry. The evidence tended to show that Stanberry and Asa Miller, both being under the influence of liquor, were cursing each other in the public road, when Stanberry grabbed Miller and threw (700) him to the ground and held him down, while he brandished his knife over him, and with an oath threatened to cut his throat or to cut his head off. Miller begged Stanberry not to cut him. The defendant interfered for the purpose of preventing Stanberry from cutting Miller, and as he did so Stanberry cursed him and asked him what he had to do with it, at the same time advancing on him with a knife drawn and in a threatening attitude. The defendant retreated, and when he was near the fence on the side of the road, and not more than four feet from Stanberry, the latter "grabbed at the defendant with his left hand and tried to strike him with his right," and the defendant thereupon fired at him with his pistol and inflicted a wound, from which Stanberry died about a month afterwards. Before the defendant fired the pistol, he warned the deceased not to advance on him with the knife. While it appeared that deceased was drunk, there was evidence tending to show that "he had good use of himself." A constable who was present told the bystanders not to let the deceased hurt Miller. Without reciting any more of the testimony, it is sufficient to say that it tended to show that the deceased was in the act of cutting Miller, with the present ability to do so, when the defendant interfered to prevent it.

At the request of the State, the court gave the following instructions:

"2. If the jury are satisfied beyond a reasonable doubt that the defendant slew the deceased with a deadly weapon, to-wit, a pistol, and are left in doubt as to the circumstances of mitigation or excuse offered by the defendant or derived from the State's evidence, they should convict of murder in the second degree.

"3. If the jury are satisfied beyond a reasonable doubt that the defendant slew the deceased with a deadly weapon, to-wit, a pistol, and are left in doubt from the whole evidence as to whether the deceased, at the time he was slain, was making a (701) felonious assault upon the defendant with a knife, either because he did not then have had the knife or because he was too drunk to be capable of making such assault, and are left in doubt as to whether the defendant, at the time he slew the deceased, believed, and had reasonable ground for believing, that the deceased was making such felonious assault upon him with a knife, then they should convict of murder in the second degree."

Defendant excepted to each of said instructions.

The defendant's counsel requested the court to give the following instruction:

"If the jury believe from the evidence that the deceased was engaged in a difficulty with Asa Miller and was attempting to cut said Miller with a knife, in the presence of the defendant, it was his duty to endeavor to suppress and prevent the same; and if in attempting to do so the deceased left off his difficulty with Miller and made upon the defendant with a drawn knife in such a manner as to cause the defendant to apprehend, and he did apprehend, that he was about to be slain or to receive enormous bodily harm, then the defendant had a right to stand his ground and, if necessary, to take the life of the deceased without retreating."

The court refused to give the instruction as asked, but in response thereto charged the jury as follows:

"If the jury believe from the evidence that the deceased was engaged in a difficulty with Asa Miller and was attempting to cut said Miller with his knife, in the presence of the defendant [and the deceased was then capable of executing such a purpose], it was his duty to endeavor to suppress and prevent the same; and if in attempting to do so the deceased left off his difficulty with Miller and made upon the defendant with a drawn knife in such manner as to cause the defendant to [reasonably] apprehend, and did [actually] apprehend, that he was about to be slain or to receive enormous (702) bodily harm, then the defendant had a right to stand his ground and, if necessary, to take the life of the deceased without retreating [provided the assault made upon the defendant was felonious or with felonious intent]."

Defendant excepted.

The parts of the instruction in brackets indicate the modifications of the defendant's prayer made by the court.

We are of opinion that the court erred in the instructions given in response to the State's second and third prayers. Those instructions required the defendant to establish the facts and circumstances in mitigation or excuse, not merely to the satisfaction of the jury, but to the exclusion of any doubt. We have recently said, in S. v. Barrett, 132 N.C. 1005, that the defendant is required to satisfy the jury of the existence of the mitigating circumstances in order to reduce the offense from murder to manslaughter, or of the matters in excuse in order to sustain his plea of self-defense, not beyond a reasonable doubt nor even by a preponderance of evidence. It is well said in S. v. Brittain, 89 N.C. 502, that "The principle of reasonable doubt has no application to the doctrine of mitigation. The rule in regard to that is, that the jury must be satisfied by the testimony that the matter offered in mitigation is true." citing S. v. Ellick, 60 N.C. 450; 86 Am. Dec., 442; S. v. Willis, 63 N.C. 26, and S. v. Vann, 82 N.C. 632. In Asbury v. R. R., 125 N.C. 568, the Court held that a charge substantially like the one given in this case imposed upon the party having the burden the duty of making out his case beyond any doubt.

We have seen that the doctrine of reasonable doubt does not apply to the case of a defendant indicted for murder, when he is attempting to establish the mitigating circumstances necessary to reduce the grade of the homicide; and if he is not (703) required to prove them beyond a reasonable doubt, how can it be said that the must remove every doubt from the minds of the jury? This would include not only a reasonable doubt, but any kind of doubt; and therefore the burden upon him would be much lighter if the simple doctrine of reasonable doubt, alone applied. This Court has repeatedly said that the law does not require such strict proof from the defendant, but it is sufficient to reduce the homicide from murder to manslaughter, or to make out a plea of self-defense, or other affirmative defense, if the jury are merely satisfied of the existence of the facts necessary for that purpose.

We are aware that expressions like that used by the learned judge in this case may occasionally be found in our Reports, and they may seem to have received the tacit approval of this Court. But when the cases are examined — and they are very few — it will be seen that they are mere dicta or were inadvertently used; and we have not been able to find a single case in which the question has been presented and it has been decided that any doubt in the minds of the jury as to the matters in mitigation or excuse is sufficient to turn the scales against the defendant and to convict him of murder or manslaughter, as the case may be, when the killing with a deadly weapon is admitted or proved. We would hesitate to follow a decision to that effect, because, as we think, it would be contrary to many cases where the question has been directly involved, and in which the principle which we have already stated has been laid down as a reasonable and just one. It imposes a greater burden than the defendant should be required to carry. Surely it cannot be that the State is required to exclude only a reasonable doubt in order to convict, and the defendant must exclude every doubt in order to reduce the grade of the homicide or to acquit himself of so serious a charge.

But the Court also told the jury, in response to the (704) State's third prayer for instruction, that they must convict the defendant of murder in the second degree if they were left in doubt as to whether the deceased, at the time he was slain, was making a felonious assault upon him, and as to whether the defendant, at the time he slew the deceased, believed or had reasonable ground for believing that the deceased, was making a felonious assault upon him. This charge required the defendant to prove not only that the deceased was actually making a felonious assault, but also that the defendant at the time had reasonable grounds to believe and did believe that he was making such an assault. Whether a felonious assault was being made or not, if the defendant, from the circumstances and surroundings as they then appeared to him, reasonably apprehended that the deceased was assailing him with the intent to kill him or to do him great bodily harm, he had the right, if he was not himself already, in fault, to stand his ground and defend himself, and, if necessary, to take the life of his assailant; and this would be true, though it afterwards appeared that the deceased did not in fact intend to commit a felonious assault. S. v. Matthews, 78 N.C. 523; S. v. Barrett, supra, and cases cited.

The defendant is to be judged, not by what the deceased actually intended, but by the reasonable apprehension excited in his own mind by the acts of the deceased as to what the latter intended to do, provided the defendant acted in good faith and with ordinary firmness. But, while he could thus act upon appearances, he must have judged, at his peril, of the grounds of his apprehension to this extent: that on his trial for the homicide, while the jury are bound by the law to pass upon the defendant's act according to the facts and circumstances as they appeared to him at the time he committed the homicide, they must be the sole judges of the (705) reasonableness of the grounds of his apprehension. We stated this principle fully in Barrett's case, and sustained it by the citation of authority, not only from the decided cases, but from the great writers upon the criminal law, and, without reproducing it, we are not content to refer to what we then said as applicable to the particular instruction of the court in this case. S. v. Dixon, 75 N.C. 275.

It is said, though, to be a complete answer to those exceptions, that the defendant was convicted of murder in the second degree, and could not therefore have been prejudiced by them. This is very far from being the case. The court plainly referred in both of the instructions not only to "matters in mitigation," but to "matters in excuse," and told the jury that if they were in doubt as to either they should convict of murder in the second degree — that is, if they were in doubt as to the matters in excuse which tended to acquit the defendant, they should convict him of murder in the second degree. It would be difficult to conceive of a charge more prejudicial than this one. If the jury entertained any sort of doubt as to the matters in excuse, they could not, under this instruction, acquit the defendant, for they were directed not to do so. If they entertained no doubt, it was as much their duty to acquit as it was, in the other case put, to convict; and yet they convicted of manslaughter instead of acquitting. It is true that if there has been error the defendant must show that he has been prejudiced before he is entitled to a new trial; but when the court tells the jury that they cannot acquit if the defendant has not removed every doubt as to the matters in excuse, the prejudice to the prisoner is perfectly manifest. One of the fallacies in supposing otherwise arises from not giving heed to the fact that both instructions referred not only to matters in mitigation, but to matters in excuse, and therefore to instruct the jury that if they had any doubt as to the matters in excuse (706) they should convict of murder in the second degree, was the same as telling them that in such a case they could not acquit. It is very true that when the killing with a deadly weapon is either admitted or proved, and nothing else appears, the presumption is that the defendant is guilty of murder in the second degree, and every matter of excuse or mitigation must be shown by the defendant, but only to the satisfaction of the jury, and there the rule stops, and it is unsafe to substitute any new, untried and unnecessary formula for this simple principle which has been approved in all cases, and especially commended by this Court as the only safe and correct one. We said, in S. v. Barrett, 132 N.C. 1012: "It is well not to depart from established forms and precedents which are the products of the wisdom and wide experience of the sages of the law. It is said in the cases just cited that the prisoner must satisfy the jury, neither beyond a reasonable doubt nor yet by a preponderance of testimony, but simply satisfy them of the existence of facts and circumstances which mitigate the offense or which make good a plea of self-defense. We are not prepared to say whether the jury can become satisfied of the existence of a fact unless the evidence in favor of its existence is stronger than or preponderates over that against its existence. But what we do say is, that it is best to follow settled forms in the trial of causes." In S. v. Byers, 100 N.C. 512, the expression now objected to appeared in the charge of the judge in the lower court, but there was no exception taken to it, and the language of the Court in the opinion did not make the slightest reference to it. S. v. Potts, 100 N.C. 457, would seem to be clearly against the State's contention in this case. The instructions as to the burden of proof in regard to insanity were there rejected, because of the use in them of the very expression, "if the jury are left in doubt," etc., and the Court expressly (707) recognizes the rule to be that the defendant is required only to satisfy the jury. In S. v. Smith, 77 N.C. 488, the objectionable words are used by Faircloth, J., inadvertently and without the slightest reference to the facts of the case or the exceptions, which did not present the question at all, and the same may be said of S. v. Jones, 98 N.C. 651, and S. v. Rollins, 113 N.C. 722. S. v. Mason, 90 N.C. 676, is an authority against the State, for in that case the principle which the Court, by Smith. C. J., referred to as "settled and put at rest by judicial decisions," is the rule established by S. v. Wills, 63 N.C. 26, and a long line of cases, ending with S. v. Barrett, 132 N.C. 1005, namely, that the defendant is only required to show matters in mitigation or excuse to the satisfaction of the jury. It is not necessary to review each of the cases cited by the State. We have carefully examined them and have not been able to find a single one among them, or indeed any other case, for we have diligently searched everywhere, in which such an instruction was held to be correct when exception was taken to it as in this case. In Pool v. State, 87 Ga. 526, the Court held that a request to charge that if there is any doubt the jury should acquit, required that the jury should be satisfied beyond all doubt, and was therefore erroneous. It is conceded by the State that the defendant is not required to satisfy the jury beyond a reasonable doubt as to the mitigating circumstances; and if so, how can he be required to satisfy them beyond all doubt by excluding "only doubt" which may be in their minds, as said in Pool v. State, supra?

When it is said that the jury cannot be satisfied that the plea of self-defense is true, if "they are left in doubt about it," nothing more or less is meant or can be intended than that the defendant must exclude from the minds of the jury not only (708) every reasonable doubt, but every other kind of doubt, which is directly opposed to all authority. The true principle is stated in S. v. Byrd, 121 N.C. 684, as follows: "Facts offered by the prisoner in excuse or mitigation need not be proved beyond a reasonable doubt, but only to the satisfaction of the jury," and this is all of it. Referring to the rule (as thus stated) in S. v. Mazon, 90 N.C. 683, Smith, C. J., said: "If anything can be settled and put at rest by judicial decisions, this principle has been, and we cannot now permit it to be drawn in question without impairing the confidence which ought to be reposed in the integrity and stability of the judicial administration of the law."

The suggestion that if we follow this established precedent of the law, unrestrained violence and lawlessness may ensue, is one to which we can give no heed. If we take our eyes from the law and give attention only to consequences, or if we stop to consider who is morally right or wrong, without regard to right or wrong as judicially ascertained, we will soon have a government, not of law, but without law, and the lawlessness which is sought to be avoided will follow as an inevitable result. We must apply the law as we find it to be, and not as we think it should be, for to do the latter would be to legislate and not to expound.

But we think the court inadvertently fell into error when it responded to the defendant's prayer for instructions and told the jury that, if the deceased advanced upon the defendant with a drawn knife in such manner as to cause him reasonably to apprehend, and he did actually apprehend, that he was about to be slain or to receive enormous bodily harm, the defendant had the right to stand his ground and, if necessary, to take the life of the deceased without retreating. Thus far the charge was correct, but the court added to this instruction the following: "provided the assault made upon the defendant was felonious or with felonious intent." As the court superadded these words to (709) the prayer of the defendant, or, rather, to its own response to that prayer, it certainly became necessary that some explanation should be made to the jury as to the meaning of the term "felonious or with felonious intent." The word "felonious" is a technical one, and not supposed to be understood by laymen of whom juries are composed. In S. v. Gaither, 72 N.C. 458, it is said to be the duty of the judge to explain to the jury what is meant by felonious intent, and that it is error not to do so. In S. v. Coy, 119 N.C. 903, the Court says: "What is meant by felonious intent is a question for the court to explain to the jury, and whether it is present at any particular time is for the jury to say," citing several cases. It was all-important in this case, because of the connection in which the words were used, that such an explanation should have been made. The jury had already been told that if the defendant reasonably apprehended that he was about to be slain or to receive great bodily harm he had a right to kill his assailant without retreating, provided he acted in good faith and with ordinary firmness. This was the true principle, and was sufficient to impart to the jury a correct idea of what was required to constitute the right of self-defense. Why, then, add the proviso that the assault must have been made by the deceased with a felonious intent? This clearly implied that more than a mere intent of the deceased to kill or to do great bodily harm was necessary to justify the defendant in taking the life of his assailant, whereas the murderous intent of the deceased in assailing the defendant was itself a felonious intent, and all-sufficient as the intent required in order that the defendant might rightfully use such force as was necessary to defend himself, even to the taking of his assailant's life.

But the addition to the defendant's prayer for instructions was in itself erroneous. It was not necessary that (710) the assault upon the defendant should have been felonious or committed with a felonious intent. If the assault was made with the purpose of inflicting great bodily harm, or even if the defendant had a reasonably well grounded apprehension that such was the fact, he had the right to act in defense of himself. An assault with an intent to kill is not a felonious assault. It was a felony at one time (Laws 1868-'69, ch. 167), but the law making it a felony was repealed by Laws 1871, ch. 43, and since the date of the passage of that act it has been a misdemeanor. It is true that an assault with intent unlawfully to kill would be an assault with a felonious intent, but the court did not only say that it must have been committed with a felonious intent, but that it must have been so committed, or the assault itself must have been felonious. We have seen that neither was required in order to give the defendant a perfect right of self-defense.

We cannot for a moment think that the right of a defendant to a correct statement of the law by the court to the jury can in any case depend upon the mere possibility, and a very remote one, of there being some member of the jury with sufficient intelligence and knowledge to explain clearly the meaning of technical words to his fellows. That, as we understand it, is the peculiar office and function of the judge. We doubt if any layman could give a correct definition of the word "felonious," as now used in the law of this State, this Court itself having had at least some difficulty in stating its exact meaning. The law presumes that the jurors do not know the law, and for this very reason enjoins upon the judge to "state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon." Code, sec. 413. This duty is not even perfunctory, and much less can it be omitted upon the mere chance that (711) the jury, or at least one of them, may know the law.

There is another objection to the proviso which was added to the instruction by the court. The court had charged the jury virtually by this instruction that an actual assault with the intent to kill or to do great bodily harm was not necessary, as he told the jury that if the defendant apprehended upon reasonable grounds that the deceased was about to assault him with that intent "he had the right to stand his ground and, if necessary, to take the life of his assailant, without retreating"; and yet, by the proviso, the jury, in order to give the defendant the benefit of that instruction, were required to find that there was a felonious assault, or an assault with a felonious intent. Under this instruction, the jury could not have acquitted the defendant if they had found that he had a well-grounded apprehension that the deceased was about to assault him with the intent to kill him or to do him great bodily harm, unless they further found that an assault had been actually committed with a felonious intent. We think that this instruction, given in response to the prayer of the defendant, was calculated to mislead the jury as to the true principle upon which the defendant's right of self-defense was founded, and it therefore necessarily prejudiced him.

In this connection it may be well to notice an expression of the court in the general charge. The jury were instructed that, in order "to justify the use of a deadly weapon in self-defense, it must appear that the danger was so urgent and pressing that in order to save his own life or to prevent his receiving great bodily harm, the shooting by the defendant was absolutely necessary, and it devolves upon the prisoner to make it appear to you that the deceased was the assailant and at fault, and that he (the prisoner) was not at fault, or that he (the prisoner) had really and in good faith endeavored to decline a struggle (712) before the shot was fired." It is true the court afterwards, in a very clear and forcible manner, explained to the jury what kind of reasonable apprehension that he was about to be killed or to receive great bodily harm would have justified the defendant in acting upon the facts and circumstances, as they appeared to him; but the fact, as we pointed out in Barrett's case, supra, that the court afterwards gave this correct instruction, did not cure the error of the charge as to the existence of the actual or "absolute" necessity to kill. In this respect the charge in Barrett's case and the charge in this case were substantially alike. The error was not corrected by the subsequent charge, nor was it intended to be, but the two instructions conflicted, and the jury were thereby left in doubt and uncertainty as to which of the two was right. What we said in Barrett's case, upon the same state of facts, substantially, is applicable here, namely, "It is well settled that when there are conflicting instructions upon a material point, a new trial must be granted, as the jury are not supposed to be able to determine when the judge states the law correctly or when incorrectly. We must assume, in passing upon the motion for a new trial, that the jury were influenced in coming to a verdict by that portion of the charge which was erroneous," citing Edwards v. R. R., 132 N.C. 99; Tillett v. R. R., 115 N.C. 662, and Williams v. Haid, 118 N.C. 481.

While the exception to this part of the charge is not very specific, we have noticed it in order that attention may again be called to the correct principle upon which a charge in such a case should be based.

It is true that an actual necessity to kill in order to save the defendant's own life would have justified the killing of his assailant, if the defendant himself was not in fault ( S. v. Dixon, supra), but it is not true actual necessity is the only ground upon which the defendant can claim that he killed (713) in self-defense; for if there was this actual necessity, or if the defendant had a reasonably well grounded apprehension of death or great bodily harm if he did not kill his assailant, his right of self-defense was complete.

If Stanberry was attempting to kill Miller or to do him great bodily harm, or if the defendant had a well-grounded belief or apprehension that he was attempting to do so, he had the right to interfere to prevent Stanberry from executing his intention, and if while engaged in the act of interference for that lawful and commendable purpose Stanberry advanced upon him in such a manner as to induce the defendant reasonably to apprehend, and defendant did actually apprehend, that he was about to be killed or to receive great bodily harm, he was justified in taking the life of Stanberry in order to save his own or to prevent great bodily harm to himself; for when he interfered he was in no fault, but was performing a legal duty, and therefore had a perfect right to stand and defend himself against the threatened attack. Clark's Criminal Law, sec. 65, p. 164; S. v. Matthews, supra; S. v. Rutherford, 8 N.C. 458; 9 Am. Dec., 658.

There was error in the rulings of the court in the respects we have stated.

New trial.