An "assault cannot be said to have been made in a secret manner except where the person assaulted is unconscious of the presence as well as of the purpose of his adversary." S. v. Patton, 115 N.C. 753.
According to the testimony of the prosecuting witness himself, he saw the defendant come out of the house after ordering himself and his party to leave his premises, and he (prosecutor) inferred from defendant's pointing to a place near where he stood that it was the defendant's purpose to go to that place and shoot him.
Acting upon this inference the prosecutor ran to his own house, a distance of a few hundred yards, and returned armed with a gun and a pistol, and began to search for the defendant about the place where the latter had indicated to his wife by pointing that it was his intention to go. The defendant "from ambush," as the prosecutor testifies, shot at him before his hiding place was discovered. At the flash of the gun, however, the assailant was seen and recognized by the prosecutor.
It seems therefore that though not previously discovered, the defendant was not concealed, but was within the range of the prosecutor's vision, if properly directed, all the while.
It was never intended by the Legislature that one who (1071) had run several yards to arm himself with gun and pistol and had returned for a battle royal with an adversary whom he knew to be armed and ready and anxious for the conflict, should be allowed, because the adversary had meantime taken the prudent precaution to step behind a bush in order to get the first fire, to invoke the aid of the criminal law to have him convicted of a felony for exhibiting such superior strategy.
The statute was enacted to protect the innocent and unwary, not armed belligerents who, in the search for an enemy, draw his fire from behind a masked battery. From the prosecutor's own testimony he was fully aware of the defendant's design, and instead of keeping out of his way, sought him where he expected to find him.
The State cannot now, because the latter changed his position in the face of apparent danger and shot before he had been thrown on the defensive, insist the [that] the assault was a secret one, or that the injured party was surprised. He had been taken at no *Page 629 disadvantage because he knew of the intent to shoot on the part of the defendant and was thoroughly prepared to meet it. S. v. Jennings,104 N.C. 774.
He knew the neighborhood of his proposed rendezvous and was beating the bushes for him, at his own game, when he was anticipated in his design. It was never intended by the Legislature that one who is armed and on the alert seeking an opportunity to shoot another, should be held the victim of a secret assault because his adversary steps out of the open way in order (if we may use a provincialism) "to get the drop on him," instead of boldly confronting him, till pressed to the wall by a deadly assault.
The law was not intended to drive a defendant to the dilemma of either waiting till he can make out a case of self-defense with all of the attendant risk, or subjecting himself to liability for a secret assault by taking the initiative as against one who is searching for him with deadly purpose and prepared to carry it out, and (1072) who is fully aware that he is in the vicinity and is likewise armed.
With such knowledge of the presence and purpose of the defendant, if the prosecutor was taken at any disadvantage, it was because he willfully exposed himself, with notice of the extent of his own danger. It further appears that the person who for the purpose of the prosecution poses as an innocent sufferer from a secret and unexpected assault, was himself trying to overcome forcible resistance to a forcible entry upon land in possession of the person who offered the resistance.
The assault was not, in any aspect of the testimony relied upon by the State, made in a secret manner. In refusing to instruct the jury, as requested, there was error which entitles the defendant to a new trial. New Trial.
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