State v. Ritter

79 S.E.2d 164 (1953)

239 N.C. 89

STATE v. RITTER et al.

No. 581.

Supreme Court of North Carolina.

December 16, 1953.

*165 Harry McMullan, Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.

H. F. Seawell, Jr., Carthage, Robert L. McMillan, Jr., Raleigh, Pittman & Staton, and Ed B. Hatch, Jr., Sanford, for appellants.

DENNY, Justice.

The defendants' second and tenth assignments of error are based on their exceptions to the refusal of the court to sustain their motion for judgment as of nonsuit at the close of the State's evidence and renewed at the close of all the evidence. On such motion, the evidence is to be considered in the light most favorable to the State, and it is entitled to the benefit of every reasonable inference to be drawn therefrom. State v. Gentry, 228 N.C. 643, 46 S.E.2d 863; State v. Davenport, 227 N.C. 475, 42 S.E.2d 686; State v. Gordon, 225 N.C. 757, 36 S.E.2d 143; State v. Scoggins, 225 N.C. 71, 33 S.E.2d 473; State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606. We think the evidence offered by the State when so considered was sufficient to sustain the ruling of the court below.

Furthermore, when all the evidence adduced in the trial below is considered, it is sufficient to support the conclusion that these appellants had some ill feeling towards the defendant Kennedy resulting from a difficulty which he had had with their brother, Jesse Ritter, and were seeking satisfaction. In fact, according to Kennedy's testimony, after he got out of the filling station, Charlie Ritter said: "You have been fighting Jesse and you are going to pay for it." It was then he threw the tire tool at Kennedy and ran and picked up a rock and also threw it at him. It would seem from the evidence that all three of the defendants fought willingly, with Kennedy losing the bout.

The defendants' assignments of error Nos. 11 through 24 are to the charge of the court. However, we will not undertake to discuss these assignments of error seriatim. The appellants urgently contend, however, that they were the innocent victims of the defendant Kennedy's unlawful assault on them and that they fought only in self-defense. Be that as it may, the court in its charge to the jury gave them the benefit of their contentions in that respect. Moreover, the charge of the court was in substantial compliance with the law on the *166 right of self-defense applicable to the contentions of the appellants. State v. Robinson, 212 N.C. 536, 193 S.E. 701; State v. Terrell, 212 N.C. 145, 193 S.E. 161; State v. Marshall, 208 N.C. 127, 179 S.E. 427; State v. Keeter, 206 N.C. 482, 174 S.E. 298; State v. Cox, 153 N.C. 638, 69 S.E. 419, 421. In the last cited case, this Court said: "In order to make good the plea of self-defense the force used must be exerted in good faith to prevent the threatened injury, and must not be excessive or disproportionate to the force it is intended to repel, but the question of excessive force was to be determined by the jury."

The appellant Euliss Ritter insists that he took no part in the affray until he went to the defense of his brother. Consequently, he contends that he had the right to defend his brother and committed no offense in doing so. The general rule in this respect is pointed out in State v. Cox, supra, in which case the Court was considering a similar contention. The Court said: "In the oral argument here the prisoner's counsel earnestly contended that the prisoner had the right to enter the fight to protect his father, but he only had that right to the same extent and under the same circumstances under which the father himself could have used force. If the father entered the fight willingly, and had not afterwards withdrawn from the fight and retreated to the wall, or if he used excessive force, he would have been guilty if he had slain his assailant. The same principle would apply to the conduct of the son, fighting in defense of a father, who had not retreated to the wall, or if the prisoner used excessive force."

The evidence disclosed on this record clearly tends to show that Charlie Ritter and the defendant Kennedy never ceased to fight after they ran out of the filling station until after Euliss Ritter entered the fight, and, according to the State's evidence, stabbed Kennedy in the manner heretofore described. Therefore, if Charlie Ritter entered the fight willingly, not having withdrawn therefrom, Euliss Ritter, in undertaking to aid his brother, was equally guilty of participating in the affray. Even so, Euliss Ritter's contention in this respect was submitted to the jury in a proper charge. The facts in the case of State v. Maney, 194 N.C. 34, 138 S.E. 441, relied on by the appellants, are distinguishable from those presented in the instant case.

Exceptions Nos. 14 and 21 are directed to a statement in the charge of the court in which Mall Craven, a Mr. Ashburn, and Carl Rouse were referred to as witnesses offered by the State, when as a matter of fact they were offered by the defendant Kennedy. A mere inadvertence of this character falls within the rule applicable to misstatements of the evidence or contentions of the parties arising on the evidence by the trial judge in charging the jury. When that occurs, the aggrieved party must call the attention of the judge to the misstatement at the time it is made, and thus afford the judge an opportunity to correct it before the case goes to the jury. Otherwise, the misstatement of the evidence or the contentions based thereon will not be subject to review on appeal. Brewer v. Brewer, N.C., 78 S.E.2d 719; State v. Lambe, 232 N.C. 570, 61 S.E.2d 608, and cited cases.

We have carefully examined the remaining exceptions and assignments of error, and are of the opinion that the trial below was free from any prejudicial error that would warrant an interference with the result thereof.

No error.