STATE
v.
Vernie HIPP.
No. 507.
Supreme Court of North Carolina.
December 12, 1956.*454 George B. Patton, Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.
S. Ray Byerly, Gavin, Jackson & Gavin, Sanford, for defendant, appellant.
HIGGINS, Justice.
The defendant's plea of not guilty placed upon the State the burden of proving her guilt beyond a reasonable doubt. The plea permitted her to justify the killing, if she could, by showing the act was done in self-defense. The evidence for the State was sufficient to go to the jury on the charge of murder in the second degree, but did it not also raise the question of self-defense?
The State introduced the defendant's admissions as evidence in the case. The defendant told her story from the stand. That, too, was evidence in the case. Boiled down to its essentials, her evidence paints this picture: The deceased, a strong man, had assaulted and beaten her repeatedly. Three days before the homicide he had a butcher knife at her back. On the fatal day he threatened to pull every hair in her head out and choke her to death. Upon his return after being gone for a few hours, he began an assault on her while she was asleep. She tried unsuccessfully to get away from him and to go to her mother's, but after twisting her arm and choking her, he got the rifle, threatened to kill her, and pointed the gun at her heart. He struck her on the side of the head, stunned her, and when she realized what had happened, he was on the floor, dead. She called the officers.
It is neither the function of the trial court nor of this Court to say whether the defendant's story is true or false. That is the jury's function. "There is in this evidence an inference of self defense which is not canceled out by the contradictory evidence of the State, even her own declaration to others that the actual shooting was accidental. In her own evidence she attributed it to a fear which neither humanity nor reason may disallow, and of which the law itself is considerate. Taking all the evidence together, the inference that defendant acted under a reasonable apprehension of great bodily harm cannot be said to be based on a mere scintilla." State v. Greer, 218 N.C. 660, 12 S.E.2d 238, 241.
If the defendant's story is to be believed, she was not at fault in bringing on the difficulty. Therefore, the door to the sanctuary of self-defense was not closed to her. Even though a frail woman, her natural reaction to an assault would be to defend herself. The instinct of self-preservation is strong in most creatures of this earth. Even a mouse will bite the hand that squeezes it. The question of self-defense arises on this evidence and only the jury can answer it. The circumstances under which one may fight and, if necessary, kill in self-defense are clearly set forth in an opinion by the present Chief Justice in the case of State v. Robinson, 213 N.C. 273, 195 S.E. 824.
The learned trial judge charged the jury: "Because of remarks made by counsel in the arguments, I instruct you, gentlemen, that there is no evidence of selfdefense in this case. There is no evidence of a justifiable shooting or killing of Clayton Hipp." The instruction is the basis of defendant's Exception No. 40 and is preserved by Assignment of Error No. 13. The exception is well taken. It was the duty of the trial court to submit to the jury the question of self-defense under proper instructions. For the error in failing to do so, the defendant is entitled to a
New trial.
JOHNSON, J., not sitting.