State v. Rawley

• Court: North Carolina Supreme Court
• Writing for the Court: WINBORNE
• Citation: State v. Rawley, 237 N.C. 233, 74 S.E.2d 620 (N.C. 1953)
• Decision Date: 25 February 1953
• Docket Number: No. 4,4
• Parties: STATE, v. RAWLEY.

Page 620

74 S.E.2d 620

237 N.C. 233

STATE, v. RAWLEY.

No. 4

Supreme Court of North Carolina.

Feb. 25, 1953

Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., Gerald F. White, Member of Staff, Raleigh, for the State.

Folger & Folger and Woltz & Barber, Mount Airy, for defendant appellant.

WINBORNE, Justice.

Among the numerous assignments of error brought up on this appeal, the first requiring express consideration is that based upon exception to this portion of the charge: 'Now, gentlemen of the jury, the court in this case will not explain to you the law of self-defense which sometime arises in homicide cases because it has no application in this case for the defendant in this case claims, and it has been the theory of this trial upon which the case has been tried, that the defendant did not stab the deceased, that is did not consider herself in any danger and that the cutting or the stabbing or the falling upon this knife was an accident; so, gentlemen of the jury, the principle of self-defense has no application in this case and will not be explained to you.'

The plea of self-defense or excusable homicide rests upon necessity, real or apparent. In State v. Marshall, 208 N.C. 127, 179 S.E. 427, 428, the principle is clearly stated:

'The * * * decision 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. State v. Bryson, 200 N.C. 50, 156 S.E. 143; State v. Bost, 192 N.C. 1, 133 S.E. 176; State v. Johnson, 166 N.C. 392, 81 S.E. 941; State v. Gray, 162 N.C. 608, 77 S.E. 833, 45 L.R.A.,N.S., 71.

'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. State v. Barrett, 132 N.C. 1005, 43 S.E. 832.

'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. State v. Blackwell, 162 N.C. 672, 78 S.E. 316.

'4. That the jury, and not the party charged is to determine the reasonableness of the belief or apprehension upon which he acted.' State v. Nash, 88 N.C. 618. See also State v. Terrell, 212 N.C. 145, 193 S.E. 161. State v. Mosley, 213 N.C. 304, 195 S.E. 830.

In State v. Johnson, supra, the Court added to the four propositions above set forth a fifth--'that, if there is any evidence that the party charged has killed under a reasonable belief that he is about to suffer death or great bodily harm, and to prevent it, the plea of self-defense must be submitted to the jury.' [166 N.C. 392, 81 S.E. 943.]

In other words, there must be evidence from which the jury may find that the party assailed believed at the time that it was necessary to kill his adversary to prevent death or great bodily harm, before he may seek refuge in the principle of self-defense, and have the jury pass upon the reasonableness of such belief.

In the light of these principles, the testimony of defendant to the effect (1) that, at the time, she did not think she was in great enough danger to make it necessary for her to cut deceased; (2) that not only she did not cut him in self-defense, but did not cut him at all; and (3) that she claims he was cut accidentally, refutes the idea that she believed she was in danger of losing her life or of suffering great bodily harm.

Hence, in withholding from the consideration of the jury the principle of selfdefense, error is not made to appear.

Assignments of error 3 and 4, based upon exceptions of same numbers, are to the ruling of the trial judge in excluding, upon objection by the State, evidence as to the general reputation of Thomas Cox, the deceased, for being a dangerous and vicious character while drinking. These exceptions are untenable.

In State v. Turpin, 1877, 77 N.C. 473, where the prisoner offered to prove the general character of the deceased as a violent and dangerous fighting man, this Court said: 'The general rule prevailing in most of the American States in that such evidence is not admissible, and in this State such a general rule is well established', citing State v. Barfield, 30 N.C. 344; Bottoms v. Kent, 48 N.C. 154; State v. Floyed, 51 N.C. 392; State v. Hogue, 51 N.C. 381. However, the Court continued by saying: 'But these cases which are cited as establishing a general rule excluding such evidence admit that there may be exceptions to it, depending upon the peculiar circumstances of each case. And these exceptions themselves are now so well defined and established by the current of the...