State v. . Absher

Seawell, J. The prime purpose of appellate review is to discover _ and correct prejudicial error. Often its correction necessitates a new trial; but it is not mandatory on the appellate court to treat separately 94 exceptions to the trial, all, allegedly, involving as many fatal errors, or to furnish a complete pattern for a new trial. Out of the objections to the conduct of the trial, a few of which may be meritorious, and a great many no doubt taken as an anchor to windward, we consider two, more deeply based and at the same time more prominently thrown up from the melange of the legal battle. On the first of these the Court does not stand with the appellant. The objection is that the trial court failed to recognize defendant’s right of self-defense, under the circumstances developed in the whole evidence, and to give the jury appropriate instructions thereupon. Without going into the refinements with which time, place, and circumstance qualify the right, a person is justified in taking the life of an assailant in self-defense under a reasonable apprehension of death or great bodily harm. It is the reasonableness of the apprehension, as it must have appeared to the defendant at the time of the act, that justifies the homicide. S. v. Robinson, 213 N. C., 273, 279, 196 S. E., 366. The defendant stated that he remembered nothing of what occurred after he had imbibed the last drink of white corn liquor at the hotel until he was awakened in jail after the killing. This covered the period during which the evidence tends to show he went home and procured the shotgun, returned and shot Watts. We are asked to infer from this amnesia and the drunkenness which caused it, that during this critical period defendant’s reasoning faculties were so affected that he was incapable of premeditation or deliberation; but it is suggested that he might be still left with enough reason to appreciate or appraise physical danger and react to it rationally. But if such an anomalous condition *660 could exist, defendant’s sweeping abnegation — the “blackout” — provides no stops for its consideration unless we resort to speculation vice et contra inference from the evidence. Under the “blackout” theory advanced by appellant and relevant testimony it is difficult to perceive how defendant could have had any apprehension at all, much less one which the law regards as extenuating only when tempered with reason. It is argued here that even an animal may have an instinct that warns him of impending menace to life; but the law of self-defense and justifiable homicide is not framed upon the facts of animal instinct and behavior, but upon the reason and accountability of man. It probes the motive behind the act. Its extenuation or justification does not rest so much in the objective circumstances staging the homicide as in the subjective apprehension of death or great bodily harm, which is reasonably aroused by them. The apprehension is morally and legally inseparable from the exercise of reason. ' Witnesses for the State testified that they were of the opinion Absher knew what he was doing. Witnesses to the facts testified to conversation and behavior on the part of Absher from which a like inference may be drawn. Is this to be taken by the Court as contradicting the defendant about the “blackout” and giving him the right to claim that he killed Watts in a reasonable apprehension of death or great bodily harm? That the circumstances were such that he ought to have felt that way about it anyway, if normal, and thus, willy nilly, force him from the defense of drunken irresponsibility to the plea of self-defense? We are asked to give the defendant the benefit of a theory which is negatived by his own testimony and to credit him with reactions which he does not profess to have had, and which no evidence in the record, standing alone, is sufficient to impute to him. Upon this record the defendant is not entitled to the desired instruction relating to self-defense. But the second objection we notice merits a new trial. The defendant had pleaded drunkenness at the time of the homicide to an extent which so affected his reason as to make it impossible for him to premeditate or deliberate the taking of life within the statutory definition of first degree murder and necessary to his conviction of that offense. On this point the trial court instructed the jury: “To make such defense available, the evidence must show that at the time of the killing the prisoner’s mind and reason was so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill. As the doctrine is one that is dangerous in its application, it is allowed only in very clear cases; and w,here the evidence was that the purpose to kill was deliberately and premeditatedly formed when sober, the imbibing of intoxicants to whatever extent, in order to carry out the design, will not avail as a defense; and the Court charges you, gentlemen of the jury, when a *661 defendant interposes a plea of drunkenness, that the burden of proving such plea is upon him, not beyond a reasonable doubt and not by the greater weight of the evidence, but simply to the satisfaction of the jury, in order for him to mitigate the offence.” The fault in this instruction does not lie in putting on the defendant the burden of establishing the affirmative defense of drunkenness and incapacity to deliberate to the satisfaction of the jury; S. v. Cureton, 218 N. C., 491, 11 S. E. (2d), 469; S. v. Bracy, 215 N. C., 248, 256, 1 S. E. (2d), 841; S. v. Shelton, 164 N. C., 513, 79 S. E., 883; but in the language used to explain its legitimate use and effect: — “in order for him to mitigate the offence.” The office of the plea and evidence supporting it is to rebut the evidence of the State tending to show deliberation, and thus defeat conviction of first degree murder, which can only be had on proof beyond a reasonable doubt of this essential element, and not to mitigate an offense already chalked up against the defendant, either through assumption by the court or presumption of law. There is, of course, another sort of presumption with which the defendant must, imprimis, contend — that of normal understanding, or sanity, which prevails until the contrary is shown; S. v. Cureton, supra; S. v. Shelton, supra; but the exception does not invite its discussion. It may haye been the purpose of the court to array the evidence of defendant’s incapacity to deliberate against evidence of the State tending to show deliberation, but the phraseology will scarcely admit of that construction; and we do not think its prejudicial tendency is relieved by construing the charge contextually, although, in another part of it the burden was properly placed on the State to prove premeditation and deliberation beyond a reasonable doubt. In the hope that the next trial will prove less challengeable, we refrain from comment on the other 92 assignments of error. For the reasons stated, however, the appellant is entitled to a new trial. It is so ordered. New trial.