State v. Bryant

• Decision Date: 15 June 1938
• Docket Number: 724.
• Citation: 197 S.E. 530,213 N.C. 752
• Parties: STATE v. BRYANT.
• Court: North Carolina Supreme Court

197 S.E. 530

213 N.C. 752

STATE v. BRYANT.

No. 724.

Supreme Court of North Carolina

June 15, 1938

Appeal from Superior Court, Forsyth County; F. D. Phillips, Judge.

R. T Bryant was convicted of manslaughter, and he appeals.

New trial granted.

Where there was evidence that defendant did not cut deceased until defendant had fallen on his back after being attacked by deceased, failure to explain principle of law of self-defense applicable in case of nonfelonious assault after stating that for a defendant to have right to stand his ground and fight in self-defense, defendant must show that the assault upon him was with felonious intent, with intent to kill, and that he took the life only when it was necessary to protect himself, was prejudicial error, since jury might have found a felonious assault was not made, but a nonfelonious assault even with a deadly weapon, was made.

Criminal action on indictment charging defendant with the murder in the second degree of one Glenn Riggs.

The defendant pleaded not guilty and relied upon the plea of self defense.

The deceased, Glenn Riggs, received knife wounds inflicted by the defendant near midnight on May 14, 1937, at the Valley View or Staley's Filling Station on a highway near Winston Salem, North Carolina, and died as a result thereof on the second day thereafter.

In order to properly understand the evidence it is well to get the setting at the time of the killing. The filling station building is situate east and west facing a highway-whether east or west the evidence does not disclose. It consisted of two connecting rooms each with a door on the front. In front of and about ten feet from the building is a line of pumps. On the north end is a gasoline pump. South of it is an ice cream box. On the south end there is an oil tank with pump on top. From the gasoline pump on the north to the oil tank on the south is about twenty-five feet. From the door of the south room to the space between the north gasoline pump and ice cream box is about sixteen or seventeen feet. Cars were in front of the line of pumps, leaving narrow way between the cars and pumps. Defendant's car was near the north pump. Deceased and defendant were in the south room.

The defendant and Robert Rond, in defendant's automobile came to the filling station about 11 o'clock at night. The deceased and Ralph Hendrix came soon afterwards. Others were there. Deceased had drunk some beer and the defendant had drunk some beer. Everybody was in good humor, laughing and joking until after deceased proposed to defendant and others that they "pitch in" and buy a pint of liquor. Then the deceased tried to get the defendant to put in a dollar. The defendant made some remark to the effect that he did not believe deceased had any money. There is evidence that deceased became angry and called the defendant a g ------ d ------ liar. There is evidence that the defendant cursed the deceased. There is evidence that the defendant had out his knife and told the deceased that if he would go out in the highway "he would cut him in little pieces". The defendant denied this. There is evidence that the manager of the filling station told the deceased and the defendant that if they wanted to argue, to go on the outside. Some of the State's testimony tends to show that immediately the manager opened the door and the defendant started out; that deceased followed and jumped on defendant from behind and struck him several times; and that deceased kept following the defendant as he backed until defendant fell over the oil tank, when deceased jumped on him and then was mortally cut.

The defendant testified that he saw that the deceased was mad, and he turned away, bought a glass of beer, and at the moment he was finishing drinking the beer, Robert Rond, who was out in the car, called out, "Come on, let's go, Mr. Bryant; I'm ready", to which defendant replied: "All right, I'm coming", turned around, set the mug down and started out the door to go home; and that at that time the deceased was sitting on a stool with his elbows on the counter.

Defendant testified: "I will say it was three or four minutes from the time Glenn cursed me and I drank the beer until I went out to go home".

State witness Ralph Hendrix testified: "Glenn told him he was a damned liar. I don't know as either one of them did anything then".

State witness Charlie Butner testified: "Mr. Bryant was drinking a mug of beer. He finished drinking that after this cussing * * * He walked about three steps over to the counter and set it down * * * It gave Gilmer (the manager) time to come down from the kitchen to the end of the counter and open the door * * * He (Bryant) * * turned and walked out * * * with his hands down by his side and went on out in a normal manner * * * Glenn jumped on his back. * * Mr. Bryant gave a twist of his shoulders and they were apart * * * Glenn hit Mr. Bryant right up beside the head then. He hit him hard enough so it popped. * * * Glenn was behind him and come around long armed and hit him * * * Mr. Bryant went on until he got between the column and the ice cream compartment. When he got through them he kind of turned up toward the car, and then Glenn got in front of him and headed him off from his car * * * Then Mr. Bryant backed right along in front of the gas tanks and columns".

Defendant further testified: "Just as I stepped out at the door,-I didn't know Mr. Riggs was behind me at all-he jumped on my back and came right under my chin and cut that place where it took six stitches to sew up. * * * My back was next to him * * * After he cut me on the throat, I throwed him off my back and turned with my face to him. He hit me three times in the side of the head as I backed to the car. * * * I did not hit him. I did not strike at him * * * I backed across the driveway and tried to get to my car. I backed all the way across the driveway by the north pump, between it and the ice cream freezer. I backed through there * * * Mr. Riggs was coming right on after me hitting at me with that knife. After I got through the tanks I backed down south between the cars and the tanks. * * * Mr. Riggs was coming right on after me, and when I fell over that tank backwards, that is when he stabbed me in the leg. He come right down on me and hit me with his left hand. My knife slipped out of my pocket and I grabbed it open and cut at him a time or two * * * When I fell over the tank my hands and feet were up in the air. * * * I never did cut at him until he stabbed me in the leg and come down on me and hit at me. I did not cut him until I was flat on my back * * * While I was backing I hollered and told them he was cutting me all to pieces and to get him off of me. Nobody seemed to take hold or help me or anything. I did not cut at him to kill him. My reason for cutting him was I was down on my back and bleeding, and though I was already dead * * * God knows I didn't mean to kill him. * * * I done my best to get away from him."

Defendant contends (1) that he had abandoned any argument with deceased while in the building and by answering Rond "All right, I'm coming" followed by his leaving the room, he gave the deceased notice of his withdrawal; (2) that after deceased had feloniously assaulted him, he retreated sixteen or seventeen feet toward his car, and on being cut off from it by deceased, he retreated twenty-five feet more until he fell, and that in that retreat he gave deceased further notice of his withdrawal from any altercation with him, and that he cut the deceased only after he had "retreated to the wall", lying flat on his back on the ground. Some of the witnesses testified that they did not see a knife in the hands of deceased.

Verdict: Guilty of manslaughter.

Judgment: Not less than seven years nor more than ten years in State's prison at hard labor.

Defendant appealed to the Supreme Court, and assigns error.

Fred S. Hutchins, H. Bryce Parker, and J. P. Rumley, all of Winston-Salem, for appellant.

Harry M. McMullan, Atty. Gen., and T. W. Bruton and Emmett C. Willis, Asst. Attys. Gen., for the State.

WINBORNE Justice.

The record discloses error affecting substantive rights of the defendant which...