State v. . Wishon

Adams, J. Tbe deceased as tbe overseer of a public road cut down a chestnut tree on tbe defendant’s land. A witness for tbe State testified tbat after tbe tree bad been cut and about two years before tbe homicide be beard tbe defendant say, “I guess Mr. Solesbee (tbe deceased) thinks it is all over, but I will get bim some time or another.” Tbe de *764 fendant excepted on tbe ground that tbe threat was too remote to be admissible. Joe Teague, another witness for tbe State, testified that about a year before tbe trial tbe defendant said in bis presence that “Pink Solesbee (tbe deceased) bad done him damage cutting timber, and be was going to get even with him one way or another.” Tbe defendant admitted be “bad bad words” with tbe deceased concerning tbe tree, and testified that tbe homicide occurred at their first subsequent meeting. In S. v. Howard, 82 N. C., 624, threats made twelve months before tbe homicide were held to be competent. Afterwards, in reference to tbe question whether threats made two years before tbe homicide should be admitted, tbe Court remarked, “We might hesitate to admit evidence of threats to kill tbe deceased, made two years before tbe homicide, if they stood alone, without evidence of intermediate and recurring threats.” In tbe present case there is evidence of an intermediate threat made within tbe time specified in S. v. Howard. Evidence of tbe threat first made is competent at least in corroboration. S. v. McDuffie, 107 N. C., 885. Tbe defendant’s admission that be killed tbe deceased raised a presumption of malice. His threats were evidence of premeditation and deliberation; but be was not convicted of tbe capital felony. In S. v. Shouse, 166 N. C., 306, it was said: “But these threats were offered to show premeditation, deliberation, and previous express malice, necessary to convict of murder in tbe first degree. S. v. Tate, 161 N. C., 280. They were practically irrelevant, unnecessary and harmless, as tbe prisoner was acquitted of tbe capital felony.” In tbe admission of evidence relating to tbe defendant’s threats there is, therefore, no error. In defining tbe legal provocation which will reduce murder in tbe second degree to manslaughter, tbe judge told tbe jury that mere words, however abusive, would not mitigate the homicide, but that an assault would; that there was legal provocation if tbe deceased laid hands upon tbe defendant against bis will, or struck at him, or choked him. An exception was taken because there was no evidence that the defendant was choked. But he testified that the deceased was in the act of assaulting him with a knife when the shot was fired; this was legal provocation, and the inadvertent use of the word “choke” could not have misled the jury to the prejudice of the defendant, especially when a definite application of the principle restricted the provocation to the alleged assault with a knife. In stating the law óf self-defense as an abstract principle the trial judge did not accurately point out the distinction between the necessity of retreating in the case of an ordinary assault (S. v. Blevins, 138 N. C., 669), and the right of a person to stand his ground when he apprehends and has reasonable grounds to apprehend that he is about *765 to suffer great bodily barm or loss of life (S. v. Clark, 134 N. C., 698); but in applying tbe principle to tbe evidence be accurately instructed tbe jury in these words: “If tbe prisoner was without fault and tbe deceased, Pink Solesbee, assaulted him with a knife, and by reason of such assault tbe prisoner actually apprehended and bad reasonable grounds to apprehend that bis life was in danger or that be was in danger of great bodily barm, and it appeared to him to be reasonably necessary to shoot tbe deceased, be was not required as a matter of law to retreat or withdraw from tbe combat, but could stand bis ground and, if necessary, even pursue bis assailant and take bis life in tbe protection of bis own life or to save bis person from serious injury.” S. v. Dills, 196 N. C., 457. For this reason tbe twelfth exception is overruled. Tbe remaining assignments are without merit. We find No error.