State v. Covington

176 S.E.2d 872 (1970)

STATE of North Carolina v. Roy Lee COVINGTON.

No. 7020SC547.

Court of Appeals of North Carolina.

October 21, 1970.

*873 Atty. Gen. Robert Morgan, by Staff Atty. Donald M. Jacobs, Raleigh, for the State.

Thomas & Harrington, by Larry E. Harrington, Monroe, for defendant appellant.

CAMPBELL, Judge.

There are several assignments of error, and since a new trial must be granted, we follow the rule to omit discussion of those matters not likely to recur on another hearing.

The defendant presented evidence tending to show that he acted in self-defense of his sister, an immediate member of his family.

The defendant assigns as error that the trial judge did not adequately instruct the jury on the circumstances they could consider in determining the reasonableness of the quantum of force used by the defendant to repel the assault on his sister. A careful examination of the charge reveals that in only one instance was the evidence that the deceased was a violent and dangerous man mentioned. This was done in the summation of the evidence on behalf of the defendant. There was, however, no correlation between the testimony of the violent and dangerous character of the deceased and the plea of killing in defense of the defendant's sister. Failure to make this correlation is reversible error.

In State v. Riddle, 228 N.C. 251, 45 S.E.2d 366 (1947), there was mention of the fact that the deceased was a man of violent and dangerous character in connection with the plea of self-defense, but the Supreme Court held the correlation was not sufficient. In that case it is stated:

"We think, however, that while the jury, in its process of thinking, might have made the correct application of the principle underlying the evidence, this did not relieve the court from more directly and clearly instructing them and explaining to them the bearing the reputation of the deceased as a violent man might have on defendants' reasonable apprehension of death or great bodily harm through the attack to which their evidence pointed."

In the instant case no correlation at all was made between the reputation of the deceased as a violent and dangerous person and the plea of self-defense.

For this inadvertent error in an able charge, there must be a new trial. It is so ordered.

New trial.

BRITT, J., concurring.

VAUGHN, J., concurring in result.