State v. Pennell, 289
| Decision Date | 01 November 1950 |
| Docket Number | No. 289,289 |
| Citation | 61 S.E.2d 593,232 N.C. 573 |
| Parties | STATE, v. PENNELL. |
| Court | North Carolina Supreme Court |
Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.
G. W. Klutz and Hal B. Adams, Lenoir, for defendant.
The pivotal question for decision is whether the defendant's special prayer for instruction called for substantial compliance; and, if so, whether the charge as given suffices for the purpose.
Practically the same question was involved on the former appeal, only in a little different form. The defendant presently complains at the failure of the court to give an instruction, seasonably proffered, touching his right of self-defense. It was given in substance, though not in the precise language of the prayer.
It is well understood that when a defendant in a criminal prosecution duly makes request for a special instruction, which is correct in itself and supported by evidence, the trial court, while not required to adopt the precise language of the prayer, is in duty bound to give the instruction, in substance at lease, and, unless this is done, either in direct response to the request or otherwise in some portion of the charge, the failure may be preserved for valid exception on appeal. Groome v. City of Statesville, 207 N.C. 538, 177 S.E. 638; State v. Henderson, 206 N.C. 830, 175 S.E. 201; State v. Lee, 196 N.C. 714, 146 S.E. 858.
In apt time, the defendant asked the court to instruct the jury that the principle of self-defense 'gives the defendant the right to use a deadly weapon, such as a rifle, if it appear to him reasonably necessary for him to do so, by reason of the fact that the deceased, his alleged assailant, was a larger, younger, stronger and more vigorous man * * * and you further find that the defendant * * * having a reasonable apprehension * * * of being seriously * * * injured by the deceased, without the deceased having any deadly weapon * * * the law gives the defendant the right to repel such assault * * * by using a rifle in his self-defense'.
Without following the language of the special prayer the court stated the same principle in different words: ...
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...substance. State v. Spicer, 285 N.C. 274, 204 S.E.2d 641 (1974); State v. Hooker, 243 N.C. 429, 90 S.E.2d 690 (1956); State v. Pennell, 232 N.C. 573, 61 S.E.2d 593 (1950). In present case, concerning Clark, the trial judge instructed the "Now, as to the witness Clark, I instruct you that he......
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...533, 17 S.E.2d 674. This the court may do either in response to the prayer or otherwise in some portion of the charge. State v. Pennell, 232 N.C. 573, 61 S.E.2d 593. The trial judge gave the following instruction: 'Premeditation means to think beforehand, and when we say that the killing mu......
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State v. Spicer, 25
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