STATE of North Carolina
v.
Connell DECK.
No. 6.
Supreme Court of North Carolina.
April 10, 1974.*832 Atty. Gen. Robert Morgan by Asst. Atty. Gen. James E. Magner, Jr., Raleigh, for the State.
Chambers, Stein, Ferguson & Lanning by Charles L. Becton, Chapel Hill, for defendant appellant.
BRANCH, Justice.
Defendant first contends that the trial court erred by admitting into evidence, over objection, the testimony of Charlotte Lathy concerning statements made to her by the deceased.
In this connection, the record discloses:
"A. I saw Mr. Wheless. In front of the Sears Store, running by. And I went to the back of the store and went out through the back entrance and saw Mr. Wheless and another man running up Highway 64, and I called to him and asked him what was wrong and could I help him, and he started to walk towards the Sears store then and I went over to meet him. When he came closer to me I *833 asked him again what was wrong and he said, `My God, that . . .'.
MR. ROSSER: OBJECTION.
COURT: OVERRULED.
EXCEPTION NO. 14.
Q. Go ahead and tell what he said to you.
A. He said, `My God, that man tried to rob me,' or `did rob me'. I don't remember which he said. And then he said . . .
MR. ROSSER: MOTION TO STRIKE.
COURT: OVERRULED.
EXCEPTION NO. 15.
Q. Go ahead.
A. And then he said, `I've been stabbed with this,' and he held the pick in his hand.
EXCEPTION NO. 16."
Defendant contends that this testimony was inadmissible as a dying declaration. He argues that there is no indication that the deceased believed himself to be dying or was in full apprehension of his danger of death. We agree. However, the trial judge did not state the basis upon which he admitted the evidence. His ruling might well have been based upon an entirely different reason.
Evidence is called hearsay, ". . . when its probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness by whom it is sought to produce it." State v. Robbins, 275 N.C. 537, 169 S.E.2d 858; State v. Cannon, 273 N.C. 215, 159 S.E.2d 505; 1 Stansbury's North Carolina Evidence (Brandis Revision 1973) § 138.
There are many exceptions to the Hearsay Rule. These exceptions are generally justified because of circumstances which make the declaration especially trustworthy. The dying declaration is one recognized exception to this rule. Another and equally operative exception relates to spontaneous utterances.
"When a startling or unusual incident occurs, the exclamations of a participant or a bystander concerning the incident, made spontaneously and without time for reflection or fabrication are admissible . . . The trustworthiness of the present type of utterance lies in its spontaneitythe unlikelihood of fabrication because the statement is made in immediate response to the stimulus of the occurrence and without opportunity to reflect . . . ." 1 Stansbury's North Carolina Evidence (Brandis Revision 1973) § 164. Hargett v. Insurance Co., 258 N.C. 10, 128 S.E.2d 26; Tart v. Register, 257 N.C. 161, 125 S.E.2d 754; State v. Litteral, 227 N.C. 527, 43 S.E.2d 84.
This exception was applied in State v. Spivey, 151 N.C. 676, 65 S.E. 995, where deceased heard a noise under his house and went outside to investigate. His family heard a shot, and within one or two minutes went outside to look. They found deceased down on his hands and knees at the corner of the house. He made a statement to his wife as to the identity of his assailant. At trial, the wife of deceased was allowed to testify over objection that, "Frank told me Henry Spivey shot him, said: `Oh, Jenny! Henry Spivey shot me, because I saw him.'" In holding that the statement of deceased was admissible, the Court quoted from the concurring opinion of Connor, J., in Seawell v. R. R., 133 N.C. 515, 45 S.E. 850, as follows: "The element of time is not always material . . . The spontaneous, unpremeditated character of the declarations, and the fact that they seem to be the natural and necessary concomitants of some relevant transaction in which their author was a participant, constitutes the basis of their admission as evidence." The Court, speaking through Manning, J., further pointed out that such statements derive their reliability from their spontaneity when (1) there has been *834 no sufficient opportunity to plan false or misleading statements, (2) they are impressions of immediate events and (3) they are uttered while the mind is under the influence of the activity of the surroundings.
In instant case, the witness testified that she first called to deceased when she saw him and another man running up the highway. Upon her offer of assistance, he stopped running and came over to her. She again asked him what was wrong. At that point he said, "My God, that man tried to rob me" or "did rob me", and "I've been stabbed with this" holding the pick in his hand.
We think the challenged statements were made in immediate response to the stimulus of the occurrence and without opportunity to reflect or fabricate. Further, decedent had no motive for fabrication. The time lapse between the completion of the alleged crime, the ensuing chase and the statements made to the witness was negligible.
In our opinion, the challenged statements were spontaneous utterances and were therefore correctly admitted by the trial judge.
Defendant next contends that the trial judge erred by refusing to instruct the jury on the law of self-defense.
The right to act in self-defense is based upon necessity, real or apparent, and a person may use such force as is necessary or apparently necessary to save himself from death or great bodily harm in the lawful exercise of his right of self-defense. A person may kill even though it be not necessary to kill to avoid death or great bodily harm if he believes it to be necessary and he has reasonable grounds for such belief. The reasonableness of his belief is to be determined by the jury from the facts and circumstances as they appeared to the accused at the time of the killing. State v. Gladden, 279 N.C. 566, 184 S.E.2d 249; State v. Jennings, 276 N. C. 157, 171 S.E.2d 447; State v. Kirby, 273 N.C. 306, 160 S.E.2d 24.
The Court is required to charge on all substantial and essential features of a case which arise upon the evidence even absent a special request for the instruction. State v. Mercer, 275 N.C. 108, 165 S.E.2d 328; State v. Todd, 264 N.C. 524, 142 S. E.2d 154; State v. Faust, 254 N.C. 101, 118 S.E.2d 769; State v. Brady, 236 N.C. 295, 72 S.E.2d 675; State v. Melton, 187 N.C. 481, 122 S.E. 17.
When supported by competent evidence, self-defense unquestionably becomes a substantial and essential feature of a criminal case.
In instant case, defendant's counsel requested the Court to instruct on self-defense, and the Court refused to so instruct.
The State's evidence presents testimony which would permit, but not require, the jury to find that: (1) defendant was without fault in bringing on the difficulty, (2) deceased was armed with and first assaulted defendant with a deadly weapon, (3) the fatal blow was struck during a struggle for the weapon first used by deceased and (4) the defendant used such force as was necessary or as appeared to him to be necessary to save himself from death or great bodily harm.
We hold that the evidence in this case was sufficient to require the trial judge to state and apply the law of self-defense to the facts of the case. The Court's failure to so do constituted prejudicial error.
We do not deem it necessary to discuss remaining assignments of error since the questions there presented may not arise at the next trial.
For reasons stated, there must be a
New trial.