State v. Maney

• Decision Date: 10 June 1927
• Docket Number: 547.
• Citation: 138 S.E. 441,194 N.C. 34
• Parties: STATE v. MANEY et al.
• Court: North Carolina Supreme Court

138 S.E. 441

194 N.C. 34

STATE v. MANEY et al.

No. 547.

Supreme Court of North Carolina

June 10, 1927

Appeal from Superior Court, Buncombe County; Stack, Judge.

Thomas W. Maney was convicted of simple assault, and he appeals. New trial.

If one person, by abusive language, induces another to strike him both are guilty of "affray."--

J. E Swain, R. Sidney King, and A. Hall Johnston, all of Asheville, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.

CLARKSON J.

The defendant, Thomas W. Maney, Abra Maney, and Guy Anders were indicted for assault with intent to kill Gus Harwood. Abra Maney and Guy Anders were acquitted by the jury, and Thomas W. Maney was convicted of simple assault. Thomas W. Maney was sentenced to serve 30 days in jail and pay all cost.

Thomas W. Maney, testified, in part:

"I struck him in defense of my wife the first time, in defense of myself when he tried to cut me with a razor. When I hit him with my fist the first time, he had a hold of my wife, and I struck him to make him turn her loose. *** I struck Gus Harwood because he was assaulting my wife and using that vile language to her. I would do the same thing, Mr. _____, if he assaulted your wife in my presence."

Mrs. Thomas W. Maney, testified, in part:

"Gus Harwood was in a drunken condition, and when he saw me he come up to me in a very insulting manner and took hold of me and said some very insulting remarks to me as to what he intended to do to me. (Language is too vulgar to use.) But it reflected upon my purity and virtue. When he did this, my husband, Tom Maney, struck Harwood with his fist and made him release me, and then Harwood turned on my husband and made an assault on him in such a violent manner and used such vile and insulting language in my presence and in the presence of my children that I was forced to run into the house and gather up my little children and leave home, going into the woods, and when I left Gus Harwood and his friends were assaulting my husband."

The testimony of Thomas W. Maney was substantially that of his wife, and they were corroborated by Abra Maney and Guy Anders. A number of reputable citizens testified that the general reputation of defendant was good.

The court below charged the jury as follows, to which exception and assignment of error was duly made:

"As to Tom Maney, if you find that he struck Gus Harwood, if you find beyond a reasonable doubt that the defendant, Tom Maney, struck Gus Harwood, at first because he put his arms around his wife and for using certain language before his wife and children, then he would not have been justified in hitting Gus Harwood in the face and knocking him down."

We think the charge of the court below is not borne out by law and cannot be sustained under the facts and circumstances of this case.

2 Cooley's Blackstone (3d Ed.) p. 2, lays down the law as follows:

"The defense of one's self, or the mutual and reciprocal defense of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself or any of these of his relations (1) be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affray. For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defense, therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law, particularly, it is held an excuse for breaches of the peace, nay even for homicide itself; but care must be taken, that the resistance does not exceed the bounds of mere defense, and prevention; for then the defender would himself become an aggressor." 2 Brill, Cyc. Criminal Law, §§ 722, 723.

In 1 Bishop on Criminal Law (9th Ed.) p. 623, it is said:

"Ordinarily, if not always, one may do in another's defense whatever the other might in the circumstances do for himself. The common case is where a father, son, brother, husband, servant, or the like protects by the stronger arm the feebler. The right to do this is unquestioned."

In State v. Johnson, 75 N.C. at page 175, it is said:

"The proposition is true that the wife has the right to fight in the necessary defense of the husband, the...