STATE of North Carolina
v.
Bennie Lee JACKSON.
No. 54.
Supreme Court of North Carolina.
December 12, 1973.*598 Robert Morgan, Atty. Gen., and Roy A. Giles, Jr., Asst. Atty. Gen., Raleigh, for the State of North Carolina.
Vaiden P. Kendrick, Asst. Public Defender, Eighteenth Judicial District, Greensboro, for defendant appellant.
HUSKINS, Justice:
The judge submitted, as permissible verdicts in this case: Murder in the first degree, *599 murder in the second degree, voluntary manslaughter, involuntary manslaughter, or not guilty. The court correctly defined each of these crimes. After the jury had been told what the State must prove beyond a reasonable doubt in order to support a verdict of guilty of murder in the first degree, the following instruction was given:
"Now, Members of the Jury, if the State proves beyond a reasonable doubt that the Defendant, Bennie Jackson, intentionally killed Paul Norman with a deadly weapon . . . the law raises two presumptions: First, that the killing was unlawful, and second, that it was done with malice. . . . In order for you to find the Defendant guilty of murder in the second degree, the State must prove beyond a reasonable doubt that the Defendant, Bennie Jackson, intentionally shot Paul Norman with this pistol described in the evidence, thereby proximately causing Paul Norman's death. Then nothing else appearing in the case but that, the Defendant would be guilty of murder in the second degree. (In order to reduce that offense to manslaughter, because of the presumption arising which I explained to you, the Defendant must come forward and prove not beyond a reasonable doubt but simply to your satisfaction that there was, in fact, no malice on his part, and in order to excuse the shooting altogether on the ground of self-defense, the Defendant must prove again not beyond a reasonable doubt, but simply to your satisfaction, that he acted in self-defense, and I will explain that principle to you in a minute.)"
Defendant assigns as error that portion of the foregoing charge in parentheses, contending that it required him to introduce independent evidence to mitigate or excuse the homicide whereas under the law he was entitled to rely not only on evidence offered by defendant but also on the evidence offered against him. We now explore the validity of this contention.
With respect to defendant's burden to show facts in mitigation or to excuse the killing altogether on grounds of self-defense, the court further instructed the jury as follows:
"In making this decision, you should consider all the circumstances as you find them to have existed from the evidence, including the size, age, and strength of the Defendant as compared to that of the victim, Paul Norman. You should consider whether any assault or threatened assault was being made upon the Defendant by Paul Norman and the fierceness of the assault, if any, upon the Defendant, whether or not Paul Norman had a weapon in his possession and any threats or communicated threats, if any, which Paul Norman had made to the Defendant in this case, or any threats, whether or not they were communicated to the Defendant in this case, made by Paul Norman." (Emphasis added.)
Of course, the law in this jurisdiction permits an accused to establish facts in mitigation or excuse from the evidence offered against him as well as the evidence he may offer himself. State v. Warren, 242 N.C. 581, 89 S.E.2d 109 (1955); State v. Todd, 224 N.C. 358, 30 S.E.2d 157 (1944).
When the State satisfies the jury from the evidence beyond a reasonable doubt that defendant intentionally shot the deceased and thereby proximately caused his death, the law raises against him the presumptions (1) that the killing was unlawful and (2) that it was done with malice; and, nothing else appearing, the accused is guilty of murder in the second degree. State v. Cooper, 273 N.C. 51, 159 S.E.2d 305 (1968); State v. Gordon, 241 N.C. 356, 85 S.E.2d 322 (1955). "The law then casts upon the defendant the burden of showing to the satisfaction of the jury, if he can do so not by the greater weight of the evidence nor beyond a reasonable doubt, but simply to the satisfaction of the jury *600 from all the evidence, facts and circumstances, the legal provocation that will rob the crime of malice and thus reduce it to manslaughter, or that will excuse it all together upon the ground of self-defense.. . . The legal provocation that will rob the crime of malice and thus reduce it to manslaughter, and self-defense, are affirmative pleas, with the burden of satisfaction cast upon the defendant." State v. Todd, 264 N.C. 524, 142 S.E.2d 154 (1965).
A fair reading of the charge as a whole impels the conclusion that the jury was not limited to a consideration of mitigating circumstances arising only from evidence offered by defendant. The court instructed the jury that it should consider "all the circumstances as you find them to have existed from the evidence." The rule is well established that the charge of the court must be read as a whole and in the same connected way that the judge is supposed to have intended it and the jury to have considered it. State v. Wilson, 176 N.C. 751, 97 S.E. 496 (1918). The charge must be construed contextually, and isolated portions will not be held prejudicial when the charge as a whole is correct. State v. Cook, 263 N.C. 730, 140 S.E.2d 305 (1965). If the charge presents the law fairly and clearly to the jury, the fact that some expressions, standing alone might be considered erroneous will afford no ground for a reversal. State v. Hall, 267 N.C. 90, 147 S.E.2d 548 (1966).
When the charge here is measured by these standards, no prejudicial error appears with respect to the subject matter of this assignment.
Defendant assigns as error the following portion of the court's instruction relating to self-defense:
"Now, Members of the Jury, if you are satisfied that under the circumstances as they existed at the time of the killing the Defendant, Bennie Jackson, reasonably believed it to be necessary to shoot Paul Norman in order to save himself, Bennie Jackson, from death or great bodily harm, and that Bennie Jackson was not the aggressor, did not bring on this affray, and did not use excessive force as I have described that term to you, then it would be your duty to return a verdict of not guilty, for you would have found that he acted in self-defense." (Emphasis ours.)
Defendant contends that use of the word "existed" in the phrase above emphasized restricts the right of self-defense to real necessity and excludes the right of self-defense under circumstances of apparent necessity.
We note that elsewhere in the charge the court had already instructed the jury as follows:
"Now, in order to excuse the killing entirely on the ground of self-defense, the Defendant, Bennie Jackson, must satisfy you of four things: First, that at the time of the shooting it appeared to him, Bennie Jackson, and he reasonably believed it to be necessary to shoot Paul Norman in order to save himself from death or great bodily harm. Second, that the circumstances as they appeared to the Defendant at the time, were sufficient to create such a belief in the mind of a person of ordinary firmness. Now, it is for you, the Jury, to determine the reasonableness of the Defendant's belief from the circumstances as they appeared to him to be at the time; in other words, you will look through the Defendant's eyes at the time of the alleged shooting and determine from what the events and circumstances appeared to him to be the reasonableness of his apprehension and belief."
After brief deliberation, the jury returned to the courtroom and requested the court "to review for us again the different verdicts we can find." The court did so, and the additional instructions included the following charge with respect to defendant's plea of self-defense:
"Now, to excuse the killing altogether on the ground of self-defense, the Defendant *601 must satisfy you of four things: First, that it appeared to him and he reasonably believed it to be necessary to shoot Paul Norman in order to save himself from death or great bodily harm. Second, that the circumstances as they appeared to the Defendant at the time were sufficient to create such a belief in the mind of a person of ordinary firmness, and you will recall that I told you that it is for you to judge the reasonableness of his belief from all the facts and circumstances as they appeared to him at the time. Third, that he was not the aggressor, that is that he didn't participate in bringing on the argument between the two. Fourth, that he did not use excessive force, that is more force that reasonably appeared to him to be necessary at the time. Now, I instructed you that if you find that he acted properly in self-defense, that is he satisfied you that all these four conditions existed at the time of the shooting, you will find him not guilty because a person has the right to kill in defense of himself provided the conditions for it are met, if he satisfies you that they exist."
The right of self-defense, as defendant correctly contends, rests upon necessity real or apparent; and, in the exercise of his lawful right of self-defense, an accused may use such force as is necessary or apparently necessary to protect himself from death or great bodily harm. State v. Jennings, 276 N.C. 157, 171 S.E.2d 447 (1970), and cases cited. "In this connection, the full significance of the phrase `apparently necessary' is that a person may kill even though to kill is not actually necessary to avoid death or great bodily harm, if he believes it to be necessary and has a reasonable ground for that belief. The reasonableness of his belief is to be determined by the jury from the facts and circumstances as they appeared to him at the time of the killing. State v. Kirby, 273 N.C. 306, 160 S.E.2d 24 (1968), and cases cited." State v. Gladden, 279 N.C. 566, 184 S.E.2d 249 (1971).
According to the record, the charge as originally given did not require defendant to show that he was not the aggressor and did not use excessive force in order to be acquitted upon his plea of self-defense. This was error favorable to the defendant of which he cannot complain. State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971); State v. Murry, 277 N.C. 197, 176 S.E.2d 738 (1970). The charge on self-defense given in the court's additional instructions is in accord with the law and afforded defendant the full benefit of the doctrine of apparent necessity. In fact, the charge as initially given was correct on that point. As expressed by Chief Justice Bobbitt in State v. Gladden, supra, this assignment of error "relates more to semantics than to substance." Lacking merit, it is overruled.
The State's evidence strongly portrays defendant as the aggressor in the perpetration of a senseless killing; and the record discloses no evidence, save defendant's own equivocal testimony, that he acted in self-defense. He has had a fair trial free from prejudicial error. Hence, the verdict and judgment will not be disturbed.
No error.