State v. . Correll

Stacy, O. J. The case turns on the adequacy and correctness of the following instruction to the jury: “If the jury shall find beyond a reasonable doubt that Charles Baker came to his death as a result of a pistol shot fired by the defendant, Johnny Correll, it is necessary, in order for the prisoner to show self-defense, the killing with a deadly weapon being proven beyond a reasonable doubt, or admitted by him, he must show absence of fault on his part, and that the killing was done while he was under actual fear or had reasonable grounds to fear that his life was in danger, or that he was in danger of great bodily harm, and that it was necessary, or that it reasonably appeared to him to be necessary, to kill his assailant to save his own life, or to protect himself from great bodily harm.” Immediately following this instruction, the court continued: “The State of North Carolina contends and insists under all the facts in this case that the defendant, Johnny Correll, was not without fault himself, but on the contrary was the aggressor and was so up until the time of the slaying of Charles Baker.” At no time did the court submit to the jury for its consideration, the evidence of the defendant tending to show that he had in good faith abandoned the quarrel and had so notified his assailant, albeit the general principle of withdrawal was called to their attention. The objection to the above instruction is, that it took from the defendant his perfect right of self-defense and overlooked the evidence which notified Baker that the defendant had in good faith quit the quarrel and was preparing to leave the club with his companion. 26 Am. Jur., 248. In this respect, the defendant says the charge contains an “aching void” as to his right to protect himself under the circumstances as they appeared to him at the time. S. v. Pollard, 168 N. C., 116, 83 S. E., 167. We are constrained to hold the exception well taken in the light of the pertinent decisions heretofore rendered in this jurisdiction. S. v. Garland, 138 N. C., 675, 50 S. E., 853; S. v. Baldwin, 184 N. C., 789, 114 S. E., 837; S. v. Crisp, 170 N. C., 785, 87 S. E., 511 (discusses differ *31 ence between perfect and imperfect right of self-defense); S. v. Kennedy, 169 N. C., 326, 85 S. E., 42. Speaking directly to the question here under consideration, Hoke, J., in delivering the opinion of the Court in the last cited ease, dealt with the matter in the following manner: “It may be well to note that the term ‘quitting the combat,’ within the meaning of these decisions, does not always and necessarily require that a defendant should physically withdraw therefrom. If the counter attack is of such a character that he cannot do this consistently with safety of life or limb, such a course is not required; but before the right of perfect self-defense can be restored to one who has wrongfully brought on a difficulty, and particularly where he has done so by committing a battery, he is required to abandon the combat in good faith and signify this in some way to his adversary. The principle here and the basic reason for it is very well stated in case of Stoffer v. The State, 15 Ohio St., 47: ‘There is every reason for saying that the conduct of the accused relied upon to sustain such a defense must have been so marked in the matter of time, place, and circumstance as not only to clearly evince the withdrawal of the accused in good faith from the combat, but also as fairly to advise his adversary that his danger has passed and to make his conduct thereafter the pursuit of vengeance rather than measure taken to repel the original assault.’ ” There is evidence on the present record which called for the application of this principle. The failure to make such application, in the light of the instruction given, constitutes error which entitles the defendant to another hearing. G-. S., 1-180. Having given the State’s contention that the defendant was the aggressor “up until the time of the slaying,” it was but meet that the contrary contention! of the defendant should have been given. And so the law is written. Messick v. Hickory, 211 N. C., 531, 191 S. E., 43. “When the judge assumes to charge, and correctly charges the law upon one phase of the evidence, the charge is incomplete unless embracing the law as applicable to the respective contentions of each party.” Second Headnote, Jarrett v. Trunk Co., 144 N. C., 299, 56 S. E., 937. In this respect, the ease of S. v. Fairley, 227 N. C., 134, 41 S. E. (2d), 88, appears to be directly in point, and would seem to be controlling here. For the deficiency in the charge, as indicated, a new trial will be awarded. New trial.