State v. Anderson
| Decision Date | 02 March 1949 |
| Docket Number | No. 74.,74. |
| Citation | 230 N.C. 54,51 S.E.2d. 895 |
| Court | North Carolina Supreme Court |
| Parties | STATE. v. ANDERSON. |
Appeal from Superior Court, Buncombe County; John H. Clements, Judge.
Ernest Anderson was convicted of assault with a deadly weapon, and he appeals.
Judgment vacated and defendant awarded a new trial.
The defendant, Ernest Anderson, was charged by indictment with feloniously assaulting, wounding and seriously injuring the State's witness, Clarence Holcombe, with a deadly weapon with intent to kill contrary to G.S. § 14-32. The State offered testimony tending to show that the defendant and Holcombe fought by mutual consent in a public place, and that in the course of the combat the defendant inflicted serious injury upon Holcombe with a knife. The defendant presented evidence indicating that Holcombe made an unpro voked attack upon him "with some kind of an instrument" and a knife, and that he cut Holcombe merely to protect himself against injury.
The court left it to the jury to determine whether the defendant was guilty of the felonious assault charged in the indictment, or guilty of a non-felonious assault with a deadly weapon, or not guilty. There was a verdict of guilty of an assault with a deadly weapon, judgment of imprisonment was imposed thereon, and defendant appealed, assigning errors.
Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes, and Ralph M. Moody, Asst. Attys. Gen, for the State.
Don C. Young, of Asheville, for defendant-appellant.
The court charged the jury as follows: "One is permitted to fight in self-defense or kill in self-defense when it is necessary for him to do so in order to avoid death or great bodily harm." This instruction was not qualified elsewhere in the charge, and constitutes one of the defend-dant's assignments of error.
Manifestly, the instruction denied to the accused the right "to fight in self-defense or kill in self-defense" in the absence of an actual necessity for so doing even though he may have honestly and reasonably believed from the circumstances surrounding him at the time that the prosecuting witness was about to take his life or to do him great bodily harm. Thus, it erroneously limited the right of self-defense to actual or real danger alone. State v. Glenn, 198 N.C. 79, 150 S.E. 663; State v. Barrett, 132 N.C. 1005, 43 S.E. 832.
The excerpt from the charge is objectionable in another view.
It is undoubted law that a person cannot excuse taking the life of an adversary upon the ground of self-defense unless the killing is, or reasonably appears to be, necessary to protect himself from death or great bodily harm. State v. Hand, 170 N.C. 703, 86 S.E. 1005. The defendant has not taken human life. It is alleged in the indictment, however, that he committed a felonious assult and battery upon the prose-cuting witness with a deadly weapon in an unsuccessful attempt to kill the prosecuting witness contrary to G.S. § 14-32. Both authority and logic declare that the law of self-defense in cases of homicide applies also in cases of assault with intent to kill, and that an unsuccessful attempt to kill cannot be justified unless the homicide would have been excusable if death had ensued. 40 C.J.S, Homicide, § 89. It follows that where an accused has inflicted wounds upon another with intent to kill such other, he may be absolved from criminal liability for so doing upon the principle of self-defense only in case he was in actual or apparent danger of death or great bodily harm at the hands of such other. State v. Elmore, 212 N.C. 531, 193 S.E. 713; State v. Bridges, 178 N.C. 733, 101 S.E. 29.
Since the evidence justified such action, the court properly charged the jury that the defendant might be acquitted of the felonious assault and battery with intent to kill charged in the indictment, and convicted of an assault of lower degree, namely, an assault with a deadly weapon, which is a misdemeanor. G.S. § 15-170; State v. Gregory, 223 N.C. 415, 27 S.E.2d 140. The jury found defendant "guilty of assault with a deadly weapon" and thereby established that he acted without intent to kill the prosecuting...
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Honeycutt v. Mahoney
...289 N.C. 500, 223 S.E.2d 296, 302, death penalty vacated, 429 U.S. 809, 97 S.Ct. 47, 50 L.Ed.2d 69 (1976), and State v. Anderson, 230 N.C. 54, 51 S.E.2d 895, 896 (1949). In the instant case, even when the evidence is viewed in a light most favorable to Honeycutt, State v. Watkins, 283 N.C. ......
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