State v. Kirby, 166

• Court: North Carolina Supreme Court
• Writing for the Court: BRANCH
• Citation: State v. Kirby, 160 S.E.2d 24, 273 N.C. 306 (N.C. 1968)
• Decision Date: 20 March 1968
• Docket Number: No. 166,166
• Parties: STATE of North Carolina v. George KIRBY.

Page 24

160 S.E.2d 24

273 N.C. 306

STATE of North Carolina v. George KIRBY.

No. 166.

Supreme Court of North Carolina.

March 20, 1968.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Bernard A. Harrell for the State.

Joseph B. Chambliss, Clinton, for defendant.

BRANCH, Justice.

Defendant assigns as error the court's question to witness Woodrow Carr: 'Speaking of the three wounds, how did they compare with each other?'

The presiding judge is entirely justified in propounding competent questions to a witness in order to clarify what a witness has said or to develop some relevant fact which has been overlooked. However, care must be exercised to avoid indirect expression of opinion on the facts, and it is improper for the trial judge to ask questions which are reasonably calculated to impeach or discredit the witness or his testimony. State v. Kimrey, 236 N.C. 313, 72 S.E.2d 677.

Testimony describing wounds found on a deceased is competent as showing the violence of the transactions. State v. Artis, 227 N.C. 371, 42 S.E.2d 409. This rule is particularly applicable here, since defendant by his plea of self-defense raises the question of whether excessive force was used. Further, since the evidence is relevant, it will not be excluded because it might excite prejudice against defendant. State v. Green, 251 N.C. 40, 110 S.E.2d 609.

Defendant argues in his brief that the answer to the question propounded by the court is circumstantial evidence and thus erroneous.

Conceding, Arguendo, that the evidence is circumstantial, the mere fact that it is circumstantial does not render it inadmissible.

'Circumstantial evidence, which is evidence of facts from which other matters may be fairly and sensibly deduced, is competent and is highly satisfactory in matters of gravest moment.' 2 Strong, N.C. Index 2d, Criminal Law, § 41, p. 546. The single question asked by the trial judge concerned a relevant fact which had apparently been overlooked. He did not cross-examine the witness, nor did the question tend to express an opinion as to the facts of the case.

Defendant's plea of self-defense, coupled with the compelling evidence that defendant inflicted the wound causing deceased's death, further dissipates any possibility of prejudicial error arising from the question. This assignment of error is overruled.

Defendant contends that the trial court erred in its instruction to the jury with respect to defendant's plea of self-defense in general and specifically as related to the crime of manslaughter.

In the case of State v. Fowler, 250 N.C. 595, 108 S.E.2d 892, this Court stated:

'The pertinent principles of law are clearly set forth in State v. Marshall, 208 N.C. 127, 129, 179 S.E. 427, 428, as follows:

'The right to kill in self-defense or in defense of one's family or habitation rests upon necessity, real or apparent, and the pertinent decisions are to the effect:

'1. That one may kill in defense of himself, or his family, when necessary to prevent death or great bodily harm. (Citing authority.)

'2. That one may kill in defense of himself, or his family, when not actually necessary to prevent death or great bodily harm, if he believes it to be necessary and has a reasonable ground for the belief. (Citing authority.)

'3. That the reasonableness of this belief or apprehension must be judged by the facts and circumstances as they appeared to the party charged at the time of the killing. (Citing authority.)

'4. That the jury and not the party charged, is to determine the reasonableness of the belief or apprehension upon which he acted. (Citing authority.)' See also State v. Goode, supra, (249 N.C. 632), at page 634, 107 S.E.2d 70.

'A defendant, when acting in his proper self-defense, may use such force only as is necessary, or as reasonably appears to him at the time of the fatal encounter to be necessary, to save himself from death or great bodily harm. 'The reasonableness of the apprehension of necessity to act, and the amount of force required, must be judged by the jury upon the facts and circumstances as they Appeared to the defendant at the time of the killing.' State v. Moore, 214 N.C. 658, 661, 200 S.E. 427, 429; State v. Bryant, 231 N.C. 106, 55 S.E.2d 922.'

See also State v. Francis, 252 N.C. 57, 112 S.E.2d 756.

In this connection defendant relies on three assignments of error.

By his Assignment of Error No. 4 defendant attacks the trial judge's instruction in that 'the court required the jury to consider upon the question of self-defense as to whether or not the defendant used excessive force in his defense when the question before the jury, as to self-defense, was whether or not he had reasonable cause to believe and did believe that such force was necessary to protect himself from impending danger or great bodily harm.'

The judge in this portion of the charge, Inter alia, instructed the jury:

'Now, in this case, if you should be satisfied from all the evidence in the case, that at the time and place in question, the defendant, Kirby, was without fault and that he was being wrongfully assaulted by Harvey McPhail with a knife and under such circumstances that would create in the defendant, Kirby's mind a reasonable ground for him to believe or for him to reasonably apprehend that he, that is the defendant at the time was about to suffer death or great bodily harm unless he cut McPhail; and that he, the defendant did not use more force than reasonable appeared to him under the circumstances, to repel the assault on him by McPhail, if such an assault if you find to have occurred by McPhail; thence the defendant, Kirby, had the right to such case of any crime, neither murder in the second degree nor manslaughter.'

Defendant contends by Assignment of Error No. 5 that the court erred 'in that the court has charged the jury to decide whether or not the defendant used excessive force while in defense of his life when the question before the jury was whether or not the defendant had, under all the circumstances, reasonable cause to believe and did believe that the force he used was necessary to protect himself from impending danger or great bodily harm.'

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