State v. Lucas

• Citation: 79 S.E. 674,164 N.C. 471
• Parties: STATE v. LUCAS.
• Decision Date: 29 October 1913
• Court: North Carolina Supreme Court

79 S.E. 674

164 N.C. 471

STATE v. LUCAS.

Supreme Court of North Carolina

October 29, 1913

Appeal from Superior Court, Cumberland County; Ferguson, Judge.

Theodore Lucas was convicted of murder in the second degree, and he appeals. Reversed, and new trial ordered.

Error in instruction as to self-defense held not cured by another instruction.

Indictment for murder, tried before his honor, G. S. Ferguson, judge and a jury at May term, 1913, of the superior court of Cumberland county. On the trial below it was proved that on March 15, 1912, in Cumberland county, the prisoner, Theodore Lucas, shot the deceased, Gilbert McDougal, with a pistol inflicting wounds from which he shortly died.

There was evidence on part of the state tending to show that at the time there was altercation between the prisoner and deceased when the latter was seen to put his hand on the prisoner's shoulder, when the latter drew his weapon and fired the shots which resulted fatally, and there was no adequate provocation or legal excuse for the homicide on the part of the defense. The prisoner, a witness in his own behalf, testified in part as follows: "I am the defendant in this action. I shot Gilbert McDougal. When I shot him, he came up to me, he did, and asked me what was that about me sending for him not to come up there. He was a married man and I had done discussed the matter, and said they just couldn't be together so much and I was the same as her brother. He made threats that he was going to get drunk and what he was going to do to me. When I shot him he was making towards me with a knife. He caught my arm. I was trying to keep him from striking me and was running backwards, and the first time I shot him I shot myself through the arm. He struck at me and caught and pulled me this way and I shot myself through the arm. He run me 10 or 15 steps after he was shot three times, and the last one he said: 'You damn son of a bitch, you better run. If I get you I will kill you."' There was other testimony from eyewitnesses of the occurrence, tending to support this statement and tending to show that the homicide was committed by the prinsoner in his necessary self-defense. There was evidence also to the effect that a knife was found near the deceased when he fell; one witness saying when so found it was shut and another that it was open.

The court being of opinion that there was no evidence to justify a conviction of murder in the first degree, the case was submitted on murder in the second degree, manslaughter, or excusable homicide. There was verdict guilty of murder in second degree. Judgment, and prisoner excepted and appealed.

Shaw & MacLean, of Fayetteville, for appellant.

The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.

HOKE J. (after stating the facts as above).

After charging the jury correctly as to murder in the second degree and manslaughter, the court below, in reference to the prisoner's claim of self-defense, stated the rule as follows: "But if you are satisfied he was without fault at the time, that he did not enter into the quarrel willingly, that he did not enter into the fight maliciously, but that having entered into the fight he quit it and went as far as he could with safety and was followed by the deceased and then pushed to the wall and shot and killed the deceased, then he would be acting in self-defense"--and to this the prisoner duly excepted.

It is held for law in this state that, when an unprovoked and murderous assault is made on a citizen, he is not required to retreat but may stand his ground and take the life of the assailant if it is necessary to do so to save himself from death or great bodily harm. State v. Hough, 138 N.C 663, 50 S.E. 709; State v. Blevins, 138 N.C. 668, 50...