MONTGOMERY, J., dissenting. The defendant was indicted for assault and battery upon Mack Hudson. There was testimony on the part of the State tending to show that the prosecuting witness was employed in a barroom as a clerk, and that about 11 o'clock at night the defendant, together with one Flowers, entered the barroom and called for the witness (Hudson); that he came into the room, and immediately Flowers demanded of him to know what he had been saying about the defendant. Thereupon a dispute arose between Flowers and the witness, which was followed by Flowers striking Hudson with his fists and knocking him down.
(659) The defendant testified as follows: "Flowers hit Hudson. He (Hudson) went behind the counter and got a pot and threw it at me, and I struck him with a bottle. I had to strike him to keep him from striking me. Hudson was drinking." On cross-examination, he said: "After Hudson threw the pot at me, he was advancing on me. He was as far from me as the post at the corner of the bar, fifteen or twenty feet, behind the counter. I threw the bottle, partly filled with benzine, at him. He had thrown the pot at me. I threw the bottle at him because he threw the pot at me. I think he would have thrown *Page 477 something else at me. He was advancing on me when I struck him, but had nothing in his hand. Flowers had knocked Hudson down. I think Hudson intended to strike Flowers with the measuring pot which he threw." This was all the evidence offered by the defendant.
The court instructed the jury that if they believed the evidence they should convict the defendant. The defendant excepted and appealed from the judgment pronounced upon a verdict of guilty. The sole question presented upon the appeal is whether the court was correct in instructing the jury that in any phase of the defendant's testimony he was guilty. This excludes from our consideration the testimony in behalf of the State. We are of the opinion that the case should have been submitted to the jury, with proper instructions, to the end that the jury should say what portion of the defendant's testimony was true and what portion of it was untrue. His testimony, taken in one aspect, certainly establishes his guilt. It is equally true that, taken in another aspect, he was not guilty. It is the province of the (660) jury to say what portion of the testimony they will believe and what portion they will reject. Taking his testimony alone, there is nothing to show that he went there for the purpose of provoking or engaging in a difficulty with the State's witness. As he states the transaction, Flowers hit Hudson, Hudson threw a missile at him, and he was advancing on him when he struck Hudson with the bottle. He says: "I had to strike him to keep him from striking me. He was advancing on me when I struck him, but had nothing in his hands." It is true that he says that he threw the bottle because Hudson threw the pot at him. It was the province of the jury to reconcile these statements, or reject that which they find untrue. If the jury shall find this to be a correct statement of the transaction, and shall further find that he had reasonable ground to apprehend that he would be stricken, that the witness was advancing upon him, and that he used no more force than was necessary, or reasonably appeared to be necessary under the circumstances, to prevent the assault, he would not be guilty. S. v. Davis, 23 N.C. 125; 35 Am. Dec., 735. If, on the other hand, the jury should find that he threw the bottle at the witness because he threw the pot at him, he would undoubtedly be guilty; or, if they should find that he did not have reasonable ground to apprehend that he would be stricken, or, having such reasonable ground, he *Page 478 used excessive force — that is, more force than was necessary or reasonably appeared to be necessary — he would be guilty. These are questions for the jury and not for the court to decide.
If the jury find the transaction to be as testified by the State's witness, he would undoubtedly be guilty; but, for the purpose of passing upon the defendant's exception, we must take his testimony as being true, and exclude the consideration of the State's evidence. We would suggest that this Court has held (661) that the formula used by his Honor to the jury — that "if they believed the evidence they should convict the defendant" — is open to criticism. S. v. Barrett, 123 N.C. 753; Sossamonv. Cruse, 133 N.C. 470.
Section 413 of the Code prescribes the duty of the judge in charging the jury: "He shall state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon." We feel sure that the error of the learned and careful judge who tried this case was an inadvertence. The testimony strongly tended to show the defendant's guilt, and doubtless so impressed his Honor.
In the administration of the criminal law it is wise to observe the "landmarks," and preserve the well-defined rights and duties of the court and jury.
The defendant's exception to his Honor's charge must be sustained, and, for the errors complained of, he is entitled to a
New trial.