State v. Blevins

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE
• Citation: State v. Blevins, 138 N.C. 668, 50 S.E. 763 (N.C. 1905)
• Decision Date: 16 May 1905
• Parties: STATE. v. BLEVINS.

138 N.C. 668

50 S.E. 763

STATE.

v.BLEVINS.

Supreme Court of North Carolina.

May 16, 1905.

homicide—self-defense—necessity of retreating—question for jury.

1. Where a man is without fault, and an assault with intent to kill is made upon him, he is not required to retreat, but may stand his ground, and kill his assailant, if it is necessaryso to do in order to save his own life or protect his person from great bodily harm.

[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 168-171.]

2. The necessity, real or apparent, of killing one's assailant in order to effectively defend one's self is a question for the jury, to be determined on the facts as they reasonably appeared to the one who did the killing.

[Ed. Note.—For cases in point, see vol. 26, Gent. Dig. Homicide, § 569.]

3. In case of an ordinary assault, even with deadly weapons, not made with intent to kill, the person assailed must retreat, if possible, as far as consistent with his own safety, before killing his assailant in his own defense.

Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 168-171.]

Appeal from Superior Court, Mitchell County; McNeill, Judge.

Flem Blevins was convicted of manslaughter, and appeals. Reversed.

S. J. Ervin and W. C. Newland, for appellant.

A. C. Avery and the Attorney General, for the State.

HOKE, J. There was evidence of the state tending to show that the prisoner was guilty of murder. The prisoner testified in his own behalf that he was on his way to town, and came up to Jason Harrell's house, where a lot of men were assembled. One Waits Harrell and his son George were in a fuss, and witness interfered to try and keep it down. George had threatened to kill his father, and each had a gun. Some of the men had hold of George, and witness took hold of Waits Harrell's gun, and wrenched it out of his hand, and was going off with it. As the prisoner walked away with the gun, he saw the deceased cutting at Jason Harrell, had given him a severe wound, and was raking at him with a knife, when the prisoner called to the deceased to "stop that, " was walking towards them, called two or three times, and said, "Don't do that, " "Put that up, " when the deceased turned and came at witness "full dive with a knife." The witness "kinder backed to the right, " said, "Take care, take care, " and as he was coming on the witness pointed the gun and fired, and killed him. He was coming on in a stooping position, with his left hand extended and right hand raised. The witness shot him because witness thought he was, going to kill him with that knife. The witness had nothing against him. The deceased came on the witness very brisk, and the witness never retreated very far; didn't have time to. At the time the witness said "Don't do that" the deceased was raking at Jason Harrell with his knife. He fell near the end of the gun. The deceased was running on the witness "full dash" when the witness shot He never pointed the gun at the deceased till he started at the witness.

In apt time the prisoner requested the court to give the jury the following instruction: "(4) If the deceased attacked the prisoner with a deadly weapon,, to wit, a knife, intending to...