State v. Guss

118 S.E.2d 906 (1961)

254 N.C. 349

STATE v. Lawrence GUSS.

No. 289.

Supreme Court of North Carolina.

March 29, 1961.

*907 T. W. Bruton, Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.

Earl Whitted, Jr., Goldsboro, for the defendant.

PER CURIAM.

Defendant testified in his own behalf and produced witnesses who gave testimony of his good character. The court instructed the jury as to this evidence of good character: "* * * it is to be received and considered by you for a twofold purpose, first as going to the credibility of the defendant, Lawrence Guss, and, secondly, as substantive evidence bearing directly upon his evidence." (Emphasis added.) The instruction is erroneous. If a defendant is a witness in his own behalf and produces evidence of his good character, the character evidence is to be considered as substantive evidence on the question of his guilt and innocence, and also as bearing upon his credibility as a witness. Stansbury: North Carolina Evidence, § 108, p. 205. State v. Reddick, 222 N.C. 520, 522, 23 S.E.2d 909.

The instant case was tried upon the theory that defendant was required "to retreat and avoid the altercation if possible," otherwise he was not entitled to rely on his plea of self-defense. Defendant testified that Williams was advancing upon him at a distance of 10 or 12 feet with an open knife containing a five-inch blade and that Williams had ill will against him and had threatened him. "When an attack is made with a murderous intent, the person attacked is under no obligation to fly, but may stand his ground and kill his adversary, if need be." State v. Godwin, 211 N.C. 419, 422, 190 S.E. 761, 763. See also State v. Washington, 234 N.C. 531, 67 S.E.2d 498. The jury must not only consider the case in accordance with the State's theory but also in accordance with defendant's explanation.

All the evidence is to the effect that defendant was at a place he had a right to be, was without fault in bringing on or entering into the difficulty, and attempted to avoid the altercation. Deceased was committing either a felonious or non-felonious assault upon him. Quaere: Under these circumstances, has the State by its own showing rebutted the malice presumed from the use of a deadly weapon by defendant, and may defendant be convicted of more than manslaughter? We do not answer here for upon a retrial the evidence may be at variance with the record before us.

New trial.