STATE
v.
Fred JOHNSON.
No. 330.
Supreme Court of North Carolina.
May 3, 1967.*51 Atty. Gen. T. W. Bruton and Staff Attorney Wilson B. Partin, Jr., Raleigh, for the State.
A. E. Leake, Marshall, for defendant.
BRANCH, Justice.
Defendant pleaded and offered evidence of self-defense. He contends that the trial judge erred in excluding testimony concerning specific incidents offered to show defendant was a violent and dangerous fighting man.
It is generally recognized in this jurisdiction that in a prosecution for homicide, where defendant pleads and offers evidence of self-defense, evidence of the character of deceased as a violent and dangerous fighting man is admissible if such character was known to defendant. State v. Morgan, 245 N.C. 215, 95 S.E.2d 507. In the instant case the court ruled that defendant could testify only as to his own experiences with the deceased. Thus we must decide if defendant may testify to specific acts of violence which occurred in his presence or of which he had knowledge prior to the homicide.
In the case of Mortimore v. State, 24 Wyo. 452, 161 P. 766, the Court stated: "(That former specific acts of violence of the deceased, showing his brutal or dangerous disposition and character, known to the defendant, that is, acts committed in his presence, or communicated to him before the homicide, are admissible in evidence, not for the purpose, primarily, of showing the deceased's character, but to explain the defendant's motive and what he might reasonably have apprehended as to the danger."
Considering the same question in Mendez v. State, 27 Ariz. 82, 229 P. 1032, the Court was of the opinion that where the facts show a prima facie case of self-defense, the accused should generally be permitted to introduce evidence of specific acts of violence by the deceased toward third persons within his own knowledge or coming under his own observation.
Also, the Delaware Court held in State v. Gordon, 37 Del. 219, 181 A. 361, where defendant killed one who assaulted him with a knife, and it was held that he should have been allowed to testify to specific instances, known to him either personally or by hearsay, or affrays in which the deceased was the aggressor and had used a knife, the court said: "The state of mind of the accused is material. The jury is to pass upon his belief that the deceased was about to attack him. Without doubt, the reputation of the deceased for violence, known to the accused, is admissible; and there seems to be no substantial reason why the belief of the prisoner should not be evidenced by knowledge of specific acts of violence, as well as by knowledge of general reputation for violence, subject, of course, to exclusion in a proper case for remoteness."
In the case of Nance v. Fike, 244 N.C. 368, 93 S.E.2d 443, the Court, speaking through Bobbitt, J., stated: "Ordinarily, evidence of prior threats and of incidents of violence on prior unrelated occasions *52 are competent only if the defendant was present or had knowledge thereof prior to the alleged assault. State v. Blackwell, 162 N.C. 672, 78 S.E. 316."
The rationale of this rule is that a jury should, as far as is possible, be placed in defendant's situation and possess the same knowledge of danger and the same necessity for action, in order to decide if defendant acted under reasonable apprehension of danger to his person or his life. We know of no better way to impart the knowledge of fear or apprehension on the part of defendant than by giving the jury the benefit of specific incidents tending to show the dangerous and violent character of the deceased. It remains in the province of the jury to decide whether the incidents occurred or whether defendant's apprehension was a reasonable one. Here, it was error for the trial judge to limit defendant's testimony, as a matter of law, to his own experiences with the deceased. He should have been allowed to relate specific acts of violence which occurred when he was present or of which he had knowledge prior to the homicide.
Defendant contends the trial court erred in admitting evidence that deceased had a service-connected disability as a result of military service in World War II. The following questions were propounded and answered over defendant's objection:
"Q. He was injured in the War, was he not, in some way?
A. Yes, he told me, I believe, in his hip, or somewheres something had struck him sometime.
Q. And he was classed as a disabled Veteran or partially disabled on account of that injury that he received in the Service, was he not?"
These questions were not material or relevant. In the case of Holman v. State, 97 Okla. Crim. 279, 262 P.2d 456, the Court stated: "Likewise the physical condition of Holman attempted to be shown by Bayless Holman, son of the defendant, was immaterial to the issues herein involved; regardless of his condition he was in such shape he could shoot accurately."
The following is found in Jones v. State, 153 Tex. Crim. 345, 220 S.W.2d 156: "In 22 Tex.Jur. p. 698, sec. 162, it is said: `But where the homicide was committed with a firearm, this character of evidence [relative size and strength of appellant and deceased] usually throws no light on the transaction; in so far as it is germane, however, it may be received,' citing Lundy v. State, 59 Tex. Crim. 131, 127 S.W. 1032."
And in Wright v. State, 162 Miss. 592, 139 So. 846: "In the present case, there was no evidence whatever to show a physical combat between appellant and the deceased immediately before the homicide. Appellant shot the deceased at a time when they were several feet apart. * * * The court, therefore, committed no error in ruling out evidence offered by appellant to show that the deceased was a more powerful man * * *."
Here, the evidence shows that deceased was shot when he and defendant were about eight feet apart. There is no evidence of physical combat or even the actual threat thereof. The injury referred to was a hip injury, and in no way interfered with deceased or so incapacitated him as to prevent the use of his weapon. The immateriality and irrelevancy of these questions, standing alone, would probably not seriously prejudice the defendant, but when the solicitor is twice allowed, over defendant's objection, to show the deceased was injured while serving his country, the prejudice to defendant becomes apparent.
Stanley v. Whiteville Lumber Co., 184 N.C. 302, 114 S.E. 385, is a civil action wherein plaintiff sought recovery of damages for personal injuries. The court, holding that it was error to admit plaintiff's certificate of discharge from the U. S. Army during the World War, among other things, said: "It is clear that the major part of the certificate was used for the *53 purpose of appealing to the sympathy of the jury." In Watson v. State, 120 Tex.Cr. R. 482, 48 S.W.2d 623, an appeal from a conviction of murder, the court said: "We confess ourselves unable to see any right on the part of the state to prove that deceased was hurt in Belgium during the World War and that he had been operated upon unsuccessfully, and that he was sickly and unable to work at the time he was killed. Nothing in such proof would aid the state in legally establishing the guilt of the accused, or in properly rebutting any defensive theory advanced."
The admission of this immaterial and irrelevant evidence could only serve to excite sympathy for the deceased and prejudice against the defendant.
The State recalled Clarence Dean Cutshall, who, in response to the solicitor's questions concerning the reputation of the deceased, testified in part: "I do not exactly know his reputation. * * * Well, just as far as I know, he was a good man." The court overruled defendant's objection and motion to strike as to this testimony. Also, the State recalled witness Kenneth Shelton, who, over defendant's objection, testified in part as follows: "Q. Do you know his general reputation in the community, that is, what people said about him? A. Yes, I know his general reputation in the community. I have never heard of him bothering anybody. I have never heard of anyone speak of his being a dangerous or violent man."
In the case of State v. Champion, 222 N.C. 160, 22 S.E.2d 232, where defendant in support of his plea of self-defense testified that deceased was a "dangerous and violent" man, the State in cross examining defendant's witnesses, and over the objection of defendant, elicited evidence of the general good character of the deceased. The court held that the evidence so elicited by the State was incompetent and its admission constituted prejudicial error, entitling defendant to a new trial. The Court held that the State, in rebuttal, was "limited to the general reputation of the defendant for peace and quiet." (Emphasis added) In the instant case, the evidence offered goes beyond this limit.
The errors discussed when considered with the total circumstances weighed too heavily on defendant, and there must be a new trial.
Other exceptions pressed for error need not be considered as they many not recur on retrial.
New Trial.