State v. . Dickey

OoNNon, J. In this case the defendant admitted that he killed the deceased by cutting her with a knife — a deadly weapon. He offered evidence tending to show that at the time he cut the deceased, and inflicted upon her the fatal wound, she was assaulting him with a knife, and that under all the circumstances as disclosed by the evidence, he was unable to escape from the murderous assault the deceased was then making upon him. This evidence was amply sufficient to support the contention of the defendant that he killed the deceased in self-defense, and that for this reason he was not guilty. In support of his contention that he killed the deceased in self-defense, the defendant offered as evidence the testimony of a witness that shortly before' the homicide, she saw the deceased, and that she then had a knife and said that as soon as she saw the defendant, she was going to cut him. This testimony was admitted without objection on the part of the solicitor for the State, and was submitted by the court to the jury as evidence in behalf of the defendant. There was no evidence tending to show that this threat of the deceased was communicated to the defendant prior to the homicide. In further support of his contention that he killed the deceased in self-defense, the defendant offered as evidence the testimony of another witness that she saw the deceased during the afternoon preceding the homicide, and that deceased then had a knife, and said that she was going to kill Marshall Dickey, the defendant, as soon as she saw him. There *420 was no evidence tending to sbow that this threat was communicated to the defendant prior to the homicide. Upon objection by the State, this testimony was excluded, and defendant excepted. On his appeal to this Court, the defendant assigns the exclusion of this testimony as error. The assignment of error must be sustained. In S. v. Baldwin, 155 N. C., 494, 71 S. E., 212, it is said: “It was insisted further that his Honor made an erroneous ruling in excluding evidence of certain uncommunicated threats of the deceased uttered shortly before the homicide, tending to show animosity towards the prisoner, and a purpose to do him serious bodily harm. It is now generally recognized that in trials for homicide uncommunicated throats are admissible (1) where they tend to corroborate threats which have been communicated to the prisoner; (2) where they tend to throw light on the occurrence and aid the jury to a correct interpretation of the same, and there is testimony ultra sufficient to carry the case to the jury tending to show that the killing may have been done from a principle of self-preservation, or the evidence is wholly circumstantial and the character of the transaction in doubt. Turpin's case, 11 N. C., 473; S. v. McIver, 125 N. C., 645; Hornegan & Thompson Self-defense, 927; Stokes’ case, 53 N. Y.; Holler v. Stale, Ind., 57; Cornelius v. Commonwealth, 54 Ky., 539. In the present case, while there was evidence, on the part of the State tending to show that the prisoner fought wrongfully, and killed without necessity, there is testimony on his part tending to show a homicide in his necessary self-defense, and the proposed evidence, tending as it did to throw light upon the occurrence should have been received.” It cannot be held that the error in excluding the testimony of this witness tending to show threats by the deceased to assault the defendant with a knife as soon as she saw him, was harmless for the reason that the testimony of another witness for the defendant tending to show similar threats on another occasion, was admitted and submitted to the jury. In Eaves v. Cox, 203 N. C., 173, 165 S. E., 345, it is said: “Obviously, if a party offers the competent testimony of a given number of witnesses, but the court excludes the testimony of one, even though the testimony of others is admitted without objection, notwithstanding, the offering party is entitled to the credibility and weight of the testimony of the excluded witness.” This principle is particularly applicable in the instant case, where the excluded evidence tended to show threats by the deceased, on a different occasion than that shown by the testimony which was admitted. The defendant is entitled to a new trial. It is so ordered. New trial.