State v. Kirby

Annotate this Case

160 S.E.2d 24 (1968)

273 N.C. 306

STATE of North Carolina v. George KIRBY.

No. 166.

Supreme Court of North Carolina.

March 20, 1968.

*26 Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Bernard A. Harrell for the State.

Joseph B. Chambliss, Clinton, for defendant.

BRANCH, Justice.

Defendant assigns as error the court's question to witness Woodrow Carr: "Speaking of the three wounds, how did they compare with each other?"

The presiding judge is entirely justified in propounding competent questions to a witness in order to clarify what a witness has said or to develop some relevant fact which has been overlooked. However, care must be exercised to avoid indirect expression of opinion on the facts, and it is improper for the trial judge to ask questions which are reasonably calculated to impeach or discredit the witness or his testimony. State v. Kimrey, 236 N.C. 313, 72 S.E.2d 677.

Testimony describing wounds found on a deceased is competent as showing the violence of the transactions. State v. Artis, 227 N.C. 371, 42 S.E.2d 409. This rule is particularly applicable here, since defendant by his plea of self-defense raises the question of whether excessive force was used. Further, since the evidence is relevant, it will not be excluded because it might excite prejudice against defendant. State v. Green, 251 N.C. 40, 110 S.E.2d 609.

Defendant argues in his brief that the answer to the question propounded by the court is circumstantial evidence and thus erroneous.

Conceding, arguendo, that the evidence is circumstantial, the mere fact that it is circumstantial does not render it inadmissible.

*27 "Circumstantial evidence, which is evidence of facts from which other matters may be fairly and sensibly deduced, is competent and is highly satisfactory in matters of gravest moment." 2 Strong, N.C. Index 2d, Criminal Law, § 41, p. 546. The single question asked by the trial judge concerned a relevant fact which had apparently been overlooked. He did not cross-examine the witness, nor did the question tend to express an opinion as to the facts of the case.

Defendant's plea of self-defense, coupled with the compelling evidence that defendant inflicted the wound causing deceased's death, further dissipates any possibility of prejudicial error arising from the question. This assignment of error is overruled.

Defendant contends that the trial court erred in its instruction to the jury with respect to defendant's plea of self-defense in general and specifically as related to the crime of manslaughter.

In the case of State v. Fowler, 250 N.C. 595, 108 S.E.2d 892, this Court stated:

"The pertinent principles of law are clearly set forth in State v. Marshall, 208 N.C. 127, 129, 179 S.E. 427, 428, as follows: `The right to kill in self-defense or in defense of one's family or habitation rests upon necessity, real or apparent, and the pertinent decisions are to the effect: `1. That one may kill in defense of himself, or his family, when necessary to prevent death or great bodily harm. (Citing authority.) `2. That one may kill in defense of himself, or his family, when not actually necessary to prevent death or great bodily harm, if he believes it to be necessary and has a reasonable ground for the belief. (Citing authority.) `3. That the reasonableness of this belief or apprehension must be judged by the facts and circumstances as they appeared to the party charged at the time of the killing. (Citing authority.) `4. That the jury and not the party charged, is to determine the reasonableness of the belief or apprehension upon which he acted. (Citing authority.)' See also State v. Goode, supra, [249 N.C. 632], at page 634, 107 S.E.2d 70. * * * * * * A defendant, when acting in his proper self-defense, may use such force only as is necessary, or as reasonably appears to him at the time of the fatal encounter to be necessary, to save himself from death or great bodily harm. `The reasonableness of the apprehension of necessity to act, and the amount of force required, must be judged by the jury upon the facts and circumstances as they appeared to the defendant at the time of the killing.' State v. Moore, 214 N.C. 658, 661, 200 S.E. 427, 429; State v. Bryant, 231 N.C. 106, 55 S.E.2d 922."

See also State v. Francis, 252 N.C. 57, 112 S.E.2d 756.

In this connection defendant relies on three assignments of error.

By his Assignment of Error No. 4 defendant attacks the trial judge's instruction in that "the court required the jury to consider upon the question of self-defense as to whether or not the defendant used excessive force in his defense when the question before the jury, as to self-defense, was whether or not he had reasonable cause to believe and did believe that such force was necessary to protect himself from impending danger or great bodily harm."

The judge in this portion of the charge, inter alia, instructed the jury:

"Now, in this case, if you should be satisfied from all the evidence in the case, that at the time and place in question, the defendant, Kirby, was without fault and that he was being wrongfully assaulted by Harvey McPhail with a *28 knife and under such circumstances that would create in the defendant, Kirby's mind a reasonable ground for him to believe or for him to reasonably apprehend that he, that is the defendant at the time was about to suffer death or great bodily harm unless he cut Mc-Phail; and that he, the defendant did not use more force than reasonable appeared to him under the circumstances, to repel the assault on him by McPhail, if such an assault if you find to have occurred by McPhail; thence the defendant, Kirby, had the right to such case of any crime, neither murder in the second degree nor manslaughter."

Defendant contends by Assignment of Error No. 5 that the court erred "in that the court has charged the jury to decide whether or not the defendant used excessive force while in defense of his life when the question before the jury was whether or not the defendant had, under all the circumstances, reasonable cause to believe and did believe that the force he used was necessary to protect himself from impending danger or great bodily harm."

Within the portion of the charge here assigned as error the trial court charged:

"* * * then it would be your duty to convict the defendant of manslaughter, unless he has established to the satisfaction of you the jury of the facts he relies on to make good his plea of self-defense and when you come to consider his plea of self-defense, you should ask yourself these questions: Did the defendant stab Harvey McPhail with a knife, that took the life of the deceased, Harvey McPhail; if such you find and was the defendant at a place where he had the right to be and was he, that is the defendant himself, without fault in bringing on or entering into an encounter or difficulty with the deceased; was he unlawfully or feloniously assaulted by the deceased; did he believe and have reasonable grounds to believe that he was about to suffer death or great bodily harm at the hands of the deceased, Harvey McPhail; did he act with ordinary firmness and prudence, under the circumstances as they reasonably appeared to him and under the belief that it was necessary to kill the deceased in order to overcome an assault being made upon him; if such you find, to save his own life or to protect his person from enormous bodily harm. Did he use no more force than was reasonably necessary or reasonably appeared to him to be necessary to repel the assault which he contends the deceased was making upon him at the time he struck him with a knife."

The court then charged that if the jury should answer these questions in the affirmative, it would be their duty to acquit defendant.

Defendant by Assignment of Error No. 6 contends that the court erred in that "included in this portion of the charge as to the guilt or innocence of the defendant of manslaughter is a requirement placed upon the defendant to show, under his plea of self-defense that he used no more force than he believed to be reasonably necessary to repel the assault when the question before the jury was not the force used but whether or not he had, under all the circumstances, reasonable cause to believe and did believe that such force was necessary to protect himself from impending danger or great bodily harm."

Here the court charged:

"* * * that (if) the prisoner has satisfied you from the evidence in the case, that at the time he stabbed and killed the deceased, Harvey McPhail, if you find that he did, that he, the defendant was at a place where he had a right to be and that he was himself without fault and that he was unlawfully or feloniously assaulted or threatened with an assault by the deceased, Harvey McPhail, in such a way and manner, that the defendant believed and had reasonable grounds to believe, that he was *29 about to suffer death or great bodily harm at the hands of the deceased, and that in the exercise of ordinary firmness and prudence, he used no more force than he believed to be reasonably necessary to repel the assault which the deceased was making upon him at the time he struck the deceased with a knife."

The judge then charged: "Then I charge you, that the killing of the deceased, Harvey McPhail, would be excusable homicide and if you so find to your satisfaction, it would be your duty to render a verdict of not guilty in the case."

In each of the assignments of error the court properly and in substantial compliance with recognized principles of law instructed the jury as to actual or apparent necessity for defendant to act in self-defense, and as to whether defendant used only such force as was necessary, or reasonably appeared to him to be necessary, at the time of the killing to save himself from death or great bodily harm.

In the case of State v. Howard, 222 N.C. 291, 22 S.E.2d 917, the trial judge read to the jury a statute in regard to punishment and cautioned the jury that punishment was not to be considered by them as bearing on defendant's guilt or innocence. Defendant excepted and appealed. In considering this exception, this Court said:

"While the reading of a statute to the jury in regard to punishment is not to be commended, we are not prepared to hold that it alone is sufficiently prejudicial to the defendant to require a new trial. Such a rule, strictly applied, might unduly fetter the judge in giving instructions to the jury, or advising them of the exact language of the statute the defendant is charged with violating. The trial judge has wide discretion as to the manner in which he presents an issue of fact to the jury, so long as he charges the applicable principles of law correctly, and states the evidence plainly and fairly without expressing an opinion as to whether any fact has been fully or sufficiently proven. C.S. § 564. It is his high duty to hold the scales evenly between all parties. There are no stereotyped forms of instructions. No two cases are exactly alike, and the trial judge's ruling should be considered by the appellate Court in the light of the circumstances of the trial. The rule prevails that in order to overthrow the verdict and judgment it must be made to appear not only that the action of the trial judge complained of was erroneous, but that it was `material and prejudicial, amounting to a denial of some substantial right.' Collins v. Lamb, 215 N.C. 719, 2 S.E.2d 863, 864."

Here, the trial court charged the applicable principles of law correctly, fairly presented the evidence and contentions of defendant and the State, and properly applied the law to the substantive features of the case.

Defendant has failed to show any prejudicial error.

No error.