State v. Ritter

• Decision Date: 16 December 1953
• Docket Number: No. 581,581
• Citation: 79 S.E.2d 164,239 N.C. 89
• Parties: STATE, v. RITTER et al.
• Court: North Carolina Supreme Court

Page 164

79 S.E.2d 164

239 N.C. 89

STATE, v. RITTER et al.

No. 581.

Supreme Court of North Carolina.

Dec. 16, 1953.

Harry McMullan, Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.

H. F. Seawell, Jr., Carthage, Robert L. McMillan, Jr., Raleigh, Pittman & Staton, and Ed B. Hatch, Jr., Sanford, for appellants.

DENNY, Justice.

The defendants' second and tenth assignments of error are based on their exceptions to the refusal of the court to sustain their motion for judgment as of nonsuit at the close of the State's evidence and renewed at the close of all the evidence. On such motion, the evidence is to be considered in the light most favorable to the State, and it is entitled to the benefit of every reasonable inference to be drawn therefrom. State v. Gentry, 228 N.C. 643, 46 S.E.2d 863; State v. Davenport, 227 N.C. 475, 42 S.E.2d 686; State v. Gordon, 225 N.E. 757, 36 S.E.2d 143; State v. Scoggins, 225 N.C. 71, 33 S.E.2d 473; State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606. We think the evidence offered by the State when so considered was sufficient to sustain the ruling of the court below.

Furthermore, when all the evidence adduced in the trial below is considered, it is sufficient to support the conclusion that these appellants had some ill feeling towards the defendant Kennedy resulting from a difficulty which he had had with their brother, Jesse Ritter, and were seeking satisfaction. In fact, according to Kennedy's testimony, after he got out of the filling station, Charlie Ritter said: 'You have been fighting Jesse and you are going to pay for it.' It was then he threw the tire tool at Kennedy and ran and picked up a rock and also threw it at him. It would seem from the evidence that all three of the defendants fought willingly, with Kennedy losing the bout.

The defendants' assignments of error Nos. 11 through 24 are to the charge of the court. However, we will not undertake to discuss these assignments of error seriatim. The appellants urgently contend, however, that they were the innocent victims of the defendant Kennedy's unlawful assault on them and that they fought only in self-defense. Be that as it may, the court in its charge to the jury gave them the benefit of their contentions in that respect. Moreover, the charge of the court was in substantial compliance with the law on the right of self-defense applicable to the contentions of the appellants. State v. Robinson, 212 N.C. 536, 193 S.E. 701; State v. Terrell, 212 N.C. 145, 193 S.E. 161; State v. Marshall, 208 N.C. 127, 179 S.E. 427; State v. Keeter, 206 N.C. 482, 174 S.E. 298; State v. Cox, 153 N.C. 638, 69 S.E. 419, 421. In the last cited case, this Court said: 'In order to make good the plea of self-defense the force used must be exerted in good faith to prevent the threatened injury, and must not be excessive or disproportionate to the force it is intended to repel, but the question of excessive force was to be determined by the jury.'

The appellant Euliss Ritter insists that he took no part in the affray until he went to the defense of his brother. Consequently, he contends that he had the right to defend his brother and committed no offense in doing so. The general rule in this respect is pointed out in State v. Cox, supra, in which case the Court was considering a similar contention. The Court said: 'In the oral argument here the prisoner's counsel earnestly contended that the prisoner had the right to enter the fight to protect his father, but he only had that right to the same extent and under the same circumstances under which the father himself could have used force. If the father entered the...