
    STATE v. LUCIUS ROBINSON.
    (Filed 4 May, 1921.)
    1. Homicide — Self-defense—Evidence—Criminal Law — Appeal and Error.
    Where upon the trial for a homicide there is evidence tending to show that the deceased had drawn his pistol on his brother after a quarrel between them, at the same time threatening his life, and then they commenced shooting at each other, which resulted in death, upon the trial for a homicide the prisoner, by his own testimony, may show, with the burden of proof on him, that without default on his own part he had shot and killed under a reasonable apprehension of his own death or great bodily harm; and the exclusion of his answer .to a question to the effect that he so believed when he fired the fatal shot, is reversible error on his appeal, which will entitle him to a new trial.
    S. Same — Instructions—Trials.
    Where evidence of self-defense is erroneously excluded on the trial for a homicide, the error is emphasized by an instruction to the jury that a verdict of guilty of manslaughter at least should be returned, unless the jury should find that the prisoner had abandoned the fight in good faith or had signified his purpose to do so before firing the fatal shot.
    INDICTMENT for murder. Appeal by defendant from Bay, J., at January Term, 1921, of Union.
    In proper time tbe solicitor announced that a verdict of murder in the first degree would not be insisted on, and the cause was submitted to the jury as to the lesser offenses included in the charge. Defendant was convicted of the crime of manslaughter. Judgment, and he excepted and appealed, assigning errors.
    
      Attorney-General Manning and Assistant Attorney-General Nash for the State.
    
    
      Varm & MilliJcen, Williams & Stewart for the defendant.
    
   HoKE, J.

There were facts in evidence for the State tending to show that on 22 October, 1920, the defendant, Lucius Robinson, his brothers, Noah and Fred, and two nephews, John and Martin Robinson, were going to Monroe, N. C., in a Ford automobile. That Noah Robinson, the deceased, and defendant began a quarrel in the car. That Lucius got on the ground and “after the word damn was used” commenced firing, inflicting on Noah a mortal wound from which he died some time that night.

There was other testimony to the effect that the five men were going to Monroe in the automobile and Fred, one of the brothers, became sick and it was decided best to return. That Lucius wished to go on and got out of tbe car, and after some angry words between bim and Noab, tbe deceased, defendant started walking to Monroe. That, wishing to induce Lucius to go back witb tbem, John, wbo was driving, turned tbe ear and backed it up tbe road after Lucius. Passing bim about three steps, Noab, tbe deceased, said to Lucius, “G— d— you, get in this car and go borne.” Lucius made no effort to get in and Noab drew bis pistol and said, “Damn you, I will kill you if you are tbe last brother I’ve got.” Noab drew bis pistol just as be said “Damn you, I’ll kill you if you are tbe only brother I’ve got,” and at that time tbe shooting began. (This witness said be did not know which fired first.) And in tbe shooting, Noab received a mortal wound from which be died that night as stated.

During tbe trial, when defendant was testifying as a witness in bis ■own behalf, after admitting that be bad shot Noab, be was asked whether at tbe time be fired be believed Noab was about to shoot bim. On objection tbe question and answer were excluded. Tbe answer would have been that tbe witness believed tbe deceased was going to kill bim. This same question, substantially, was put to the witness in different forms and both question and answer excluded, as follows:

“State, Mr. Robinson, whether or not you would have shot Noab unless you bad thought be was about to shoot you.”
Again, “When you saw bim witb a pistol in bis band and be told .you to get in tbe car, what did you think?”

Further, -“You may go ahead and tell bis Honor and the jury, Mr. Robinson, when your brother Noab drew bis pistol and told you to get in tbe car what, if anything, did you believe be was going to do ?”

Another, “Please state whether or not, Mr. Robinson, at tbe time you fired at your brother you believed be was about to shoot you.”

On tbe facts presented, tbe principle of self-defense would arise to defendant if, being in no default himself, be killed bis brother when be believed and bad fair and reasonable ground to believe that be was in danger of death or great bodily barm from bis brother’s assault. "While, in order to sustain this position, defendant must satisfy tbe jury that be bad a fair and reasonable ground to apprehend some barm to himself and it was necessary to kill for bis own protection, tbe evidence ■excluded by these rulings in some form should have been received as tending to establish defendant’s right of self-defense.

Tbe decision is emphasized by tbe fact that tbe judge, among other things, instructed tbe jury that if defendant entered into tbe fight willingly be would be guilty of manslaughter, at least unless before tbe killing be abandoned tbe fight in good faith, and in some way signified his purpose to do so, under tbe doctrine approved in S. v. Kennedy, 169 N. C., 326. In this aspect of tbe case, also, tbe excluded evidence bore directly on the issue of guilt or innocence and should have been received.

By the ruling of his Honor we are of opinion that the defendant has been erroneously deprived of the right to testify in his own behalf oiu matter material to his defense, and is entitled to a new trial.

New trial.  