State v. Kirkman

OxaeKsoN, <7.

From the facts and circumstances of this case, we cannot sustain the charge of the able and painstaking judge in the court below. 'Without discussing the evidence, as the case goes back for a *722 new trial, we tbink tbe question of self-defense, under all tbe facts and circumstances of tbis case, was for a jury to determine.

In State v. Hough, 138 N. C., 663 (667-8), we find: “It is said in 1 East, Pleas of tbe Crown, 271: ‘A man may repel force by force in defense of bis person, habitation, or property against one who manifestly intends or endeavors by violence to commit a felony, such as murder, rape, burglary, robbery, and tbe like, upon either. In these cases be is not obliged to retreat, but may pursue bis adversary until be has secured himself from all danger, and if be kill him in so doing it is called justifiable self-defense/ Tbe American doctrine is to tbe same effect. See State v. Dixon, 75 N. C., 275 . . . . Tbe defendant was on bis own premises, engaged in bis peaceful pursuits at tbe time tbe deceased advanced on him in a manner giving unmistakable evidence of bis purpose to do tbe defendant bodily barm. How was tbe defendant expected to receive him? In tbe oft-quoted language of Judge Pearson in State v. Floyd, 51 N. C., 392 , ‘One cannot be expected to encounter a lion as be would a lamb/ and tbe measure of force which tbe defendant was permitted to use under such circumstances ought not to be weighed in ‘golden scales.’ ”

In State v. Holland, 193 N. C., 713 (718), speaking to tbe subject, is tbe following: “Tbe first law of nature is that of self-defense. Tbe law of tbis State and elsewhere recognizes tbis primary impulse and inherent right. One being without fault, in defense of bis person, in tbe exercise of ordinary firmness, has a right to invoke tbis law and kill bis assailant, if be has reasonable ground for believing or apprehending that be is about to suffer death or great or enormous bodily harm at bis bands. Tbe danger or necessity may be real or apparent. It is for tbe jury, and not tbe party setting up tbe plea, to determine, under all tbe facts and circumstances, tbe reasonableness of tbe grounds for tbe belief or apprehension of tbe real or apparent danger or necessity. Tbe mere fact that a man believes or apprehends that be is in present, immediate, or imminent danger of death or great bodily barm, is not sufficient to justify tbe taking of tbe life of a human being, but there must be reasonable ground for tbe belief or apprehension — an honest and well-founded belief or apprehension at tbe time tbe homicide is committed. . . . (Citing authorities.) In S. v. Hand, 170 N. C., at p. 706, it is said: ‘It is well-settled law that when tbe killing with a deadly weapon has been proved or admitted, tbe burden is on tbe prisoner to show excuse or mitigation.

S. v. Gaddy, 166 N. C., 341 ;

S. v. Yates, 155 N. C., 450 ;

S. v. Rowe, ibid., 436;

S. v. Simonds, 154 N. C., 197 ;

S. v. Briitian, 89 N. C., 481 .’ ”

State v. Turnage, 138 N. C., 566 (569-570);

State v. Gregory, 203 N. C., 528 .

“Tbe law of England,” said Sir Matthew Hale, “bath afforded tbe best method of trial that is possible for tbis and all other matters of fact, *723 namely, by a jury of twelve men all concurring in the same judgment, by the testimony of witnesses viva, voce in the presence of the judge and jury, and by the inspection and direction of the judge.” 1 Pleas of the Crown, 33. “The trial by jury,” declared Blackstone, “ever has been, and I trust ever will be, looked upon as the glory of the English Law.”. It is “the most transcendent privilege which any subject can enjoy, or wish for,” he continues, “that he cannot be affected either in his property, or his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.” 3 Comm., 379.

Eor the reasons given, there must be a New trial.

DeviN, J., took no part in the consideration or decision of this ease.