State v. Ellerbe

• Decision Date: 12 January 1944
• Docket Number: 579.
• Citation: 28 S.E.2d 519,223 N.C. 770
• Parties: STATE v. ELLERBE.
• Court: North Carolina Supreme Court

28 S.E.2d 519

223 N.C. 770

STATE v. ELLERBE.

No. 579.

Supreme Court of North Carolina

January 12, 1944

Criminal prosecution tried upon indictment charging the defendant with the murder of Otis Leak.

Verdict Guilty of manslaughter. Judgment: Imprisonment in the State's Prison for a term of not less than seven nor more than fifteen years.

The defendant appeals, assigning errors.

Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.

Jones & Jones, of Franklin, for defendant.

DENNY Justice.

This defendant was at the home of Martha Josephs on the night of January 6th, 1933. Otis Leak had been there and had left to get someone to take him and the defendant on a trip. Leak requested the defendant to remain there until he returned. While the defendant was waiting for Leak's return, Jesse Rogers came up 'and appeared like he was drunk'. A quarrel ensued and the defendant testified that Rogers said when he left, 'That is all right, I will get you, I am going off and will come back and get you.' In this he is corroborated by the State's evidence. The defendant left and hunted for Otis Leak but failed to find him. He thereupon returned to the home of Martha Josephs, where he had slept the night before. Martha's house contained two front rooms and a back-shed, which was used as a kitchen. Just prior to the shooting, the defendant and Martha were sitting by the fire in the front room of the house, which room adjoined the kitchen. This room and the kitchen were connected by a 'middle door'. The defendant was sitting with his back to this door. Martha heard someone in the kitchen and said 'Will, there is somebody in the room'. Defendant testified 'I got up and took my pistol out of my pocket, I was right against the door and I could hear him scratching against the door trying to find the knob in the dark, and Martha spoke and said 'Who is that'? and nobody said nothing, and I hollered loud enough to hear me might near a block because I was scared and I said, 'Who in the hell is that?' and wouldn't nobody say nothing whatever, and I said 'Whomsoever you is go outside, you come in here and I am going to shoot you', and about that time he found the knob and began pulling the door open and I reckon he must have cracked it that much (Witness measures with hands). And that is when I shot twice through the door. I thought it was Jesse Rogers at the door because he wouldn't answer and I shot because I was scared, I was afraid I would get shot; I was looking for Jesse to come back and kill me as he said he would; I was afraid of Jesse and lots of people in town was his character was bad for being violent and dangerous.'

This evidence appears to be sufficient to entitle the defendant to have his plea of self-defense considered by the jury. State v. Kimbrell, 151 N.C. 702, 66 S.E. 208, 614; State v. Johnson, 166 N.C. 392, 81 S.E. 941. Therefore, it becomes necessary for us to consider the defendant's third exception, which was entered to the following portion of his honor's charge: 'Gentlemen of the jury, the court instructs you that where a person is without fault and a murderous assault is made upon him, that is, I mean with intent to kill, he is not required to retreat but he may stand his ground and if he kills his assailant and it is necessary to do so in order to save his own life or to protect himself from great bodily harm, it would be excusable homicide and this would be true whether the necessity for the killing be either real or apparent. This is, however, the Court instructs you, to be determined by the jury from the facts as they find them to be from the evidence as they reasonably appeared to the defendant at the time of the alleged killing, and in order, the Court instructs you, to have the benefit of this principle of law the defendant must show that he was free from blame in the matter and that the assault or threatened assault was made upon him with a felonious purpose, and that he took the life of the person who was threatening to assault him or the person that he has reasonable ground to believe was threatening to assault him, only when it was necessary to save himself from death or from great bodily harm.'

The exception is well taken and must be sustained. It is apparent the instruction complained of was the result of an inadvertence on the part of the able trial judge. However, after properly charging the law on the plea of self-defense, the court instructed the jury that in order to have the benefit of this principle of law, 'the defendant must show that he was free from blame in the matter, and that the assault or threatened assault was made upon him with a felonious purpose, and that he took the life of the person who was threatening to assault him, or the person that he has reasonable ground to believe was threatening to assault him, only when it was necessary to save himself from death or great bodily harm.'

We think the instruction, in the light of the facts and circumstances set forth in this record, is objectionable in two respects. In the first place, the defendant cannot show that the assault or threatened assault was made upon him with a felonious purpose. At most, he can only show that he believed a felonious assault was about to be made upon him. In the second place, he cannot show that it was necessary to kill his supposed assailant to save himself from death or great bodily harm, for he killed Otis Leak, his friend, under the misapprehension that Leak was Jesse Rogers. Therefore, in no event can he show more than that he took the life of the person that he had reasonable ground to believe was about to commit a felonious assault upon him, when it appeared to him to be necessary to save himself from death or great bodily harm.

One may kill in defense of himself when it is not actually necessary to prevent death or great bodily harm, if he believes it to be necessary and has a reasonable ground for such belief. State v. Barrett, 132 N.C. 1005, 43 S.E. 832, 834, in which case the court said: 'There is a marked difference between an actual necessity for killing and that reasonable apprehension of losing life or receiving great bodily harm which is all that the law requires of the prisoner in order to excuse the killing of his adversary, and it was just this difference that may have caused the jury to decide against the prisoner upon this most important issue in the case.'

The distinction referred to above constitutes the crucial point involved on this appeal. State v. Terrell, 212 N.C. 145, 193 S.E. 161; State v. Holland, 193 N.C. 713, 138 S.E. 8; State v. Bush, 184 N.C. 778, 114 S.E. 831; State v. Johnson, 184 N.C. 637, 113 S.E. 617.

In the case of State v. Nash, 88 N.C. 618, the defendant 'proposed to prove that before he fired, his child, who was sleeping near a window in the house, through which the noise of the bells and horns and firing was heard and the flash of the firing seen, rose up and ran to the witness with blood on her face (cause as he afterwards learned, but did not then know, by her running against the end of a table) and under the impulse of the moment, believing that she had been shot, he got his gun and went to the door, and, seeing the flash of pistols fired as he supposed by the retreating crowd, fired his gun at and into the crowd.' The trial court excluded the evidence and the defendant excepted and appealed. In sustaining the exception, this court said: 'We know this has been a much mooted question, but upon an investigation of the authorities, our conclusion is, that a reasonable belief that a felony is in the act of being committed on one, will excuse the killing of the supposed assailant, though no felony was in fact intended. * * * But it may be objected that the defendant acted too rashly: before he resorted to the use of his gun, he should have taken the precaution to ascertain the fact whether his child had been actually shot. But the doctrine is inconsistent with the principle we have announced. If the defendant had reason to believe and did believe in the danger, he had the right to act as though the danger actually existed, and was imminent. Taking, then, the fact to be, that the trespassers had fired into defendant's house and shot his child, and the firing continued, there was no time for delay. The occasion required prompt action. The next shot might strike him or some other member of his family. Under these circumstances, the law would justify the defendant in firing upon his assailants in defense of himself and his family. But, as we have said, the grounds of belief must be reasonable. The defendant must judge, at the time, of the ground of his apprehension, and he must judge at his...