The defendant was indicted for killing one Creighton Morrow, and on the trial in the court below his Honor refused to admit evidence of the general character of the defendant for violence, and also (474) refused to admit evidence of threats made by the deceased, which had not been communicated to the defendant The case is sufficiently stated by Mr. Justice Bynum in delivering the opinion of this Court. The jury found the defendant guilty of manslaughter. Judgment. Appeal by defendant.

BYNUM, J.

The prisoner was indicted for murder, and was convicted of manslaughter. He relied upon the plea of justifiable self-defense, and, to make that defense good, offered testimony of the general character of the deceased as a violent and dangerous fighting man, and also threats made by the deceased against the prisoner, but which were not communicated to him. The exclusion of this evidence is the subject of exceptions by the prisoner.

If the proposed testimony when admitted could not have reduced the offense below manslaughter, the crime of which he was convicted, then the prisoner has received no prejudice and it was not error to exclude it. We are first to see, then, whether the testimony offered and rejected would have tended, not to mitigate the offense from murder to manslaughter, but to establish a case of justifiable homicide.

The prisoner alleges that he was drawn into the combat against his consent by the machinations of the deceased, with the intent to take his life; and that the combat on his part was in self-defense, retreat was impossible, and the killing was unavoidable and necessary to save his own life. To establish this defense, the prisoner introduced testimony showing, or tending to show, that the deceased had malice towards him; that he had a short time before the homicide threatened to kill (476) him, and particularly if he did not keep away from Mrs. Tate's, the place where he then was; that the deceased had seen him that evening going in the direction of Mrs. Tate's, and had secretly followed him; that the deceased entered the house suddenly and "mad," and immediately began a quarrel with the prisoner by false accusations, and by charging him with doing the very act for which he had threatened to kill him; that the deceased was secretly armed with a stone of 3 pounds weight, with which he began and continued the fight without any notice to the prisoner, and before he drew the pistol; that from the suddenness of the attack, its deadly nature, and from being hemmed up in the house, retreat was impossible; and the pistol was then drawn and discharged upon the deceased in necessary self-defense and to save his life.

In confirmation of this, and to show the true character of the struggle and his imminent danger, the prisoner offered to prove the general character of the deceased as a violent and dangerous fighting man, and also to prove other threats which had been made against him by the deceased, but which had not been communicated before the homicide. Was this testimony admissible?

The general rule prevailing in most of the American States is that such evidence is not admissible, and in this State such a general rule is well established. S. v. Barfield, 30 N.C. 344; Bottoms v. Kent, 48 N.C. 154; S. v. Floyd, 51 N.C. 392; S. v. Hogue, ib., 381. But these cases which are cited as establishing a general rule excluding such evidence admit that there may be exceptions to it, depending upon the peculiar circumstances of each case. And these exceptions themselves are now so well defined and established by the current of the more recent decisions that they have assumed a formula and have become a general rule subordinate to the principal rule. It is this: Evidence of the general character of the deceased as a violent and dangerous man is admissible where there is evidence tending to show that the killing may (477) have been done from a principle of self-preservation, and also where the evidence is wholly circumstantial and the character of the transaction is in doubt, as in S. v. Tackett, 1 Hawks, 210; Horrigan Thompson Self-defense, 695, and Index, under the head of "Character of the Deceased for Violence," for reference to the cases at large.

Where one is drawn into a combat of this nature, by the very instinct and constitution of his being he is obliged to estimate the danger in which he has been placed and the kind and degree of resistance necessary to his defense. To do this he must consider not only the size and strength of his foe, how he is armed, and his threats, but also his character as a violent and dangerous man. It is sound sense, and we think sound law, that before a jury shall be required to say whether the defendant did anything more than a reasonable man should have done under the circumstances, it should, as far as can, be placed in the defendant's situation, surrounded with the same appearances of danger, with the same degree of knowledge of the deceased's probable purpose, which the defendant possessed. If the prisoner was ignorant of the character of the deceased, then the proof of it would have been inadmissible, because his action could not have been influenced by the dangerous character of a man of which he had no knowledge. That is not our case. Here the prisoner was the neighbor of the deceased, and was fully cognizant of his violent and dangerous nature. Should this knowledge in the possession of the prisoner, and reasonably influencing his actions, be withheld from the jury which is to pass upon the criminality of the act of killing? The jury must ascertain the true character of the combat; for if from the nature of the attack there was reasonable ground to believe there was a design to destroy his life or commit a felony upon his person, the killing the assailant would be excusable homicide. And this would be so even though it should afterwards appear that no felony was intended: as if one comes rushing upon you with a pistol in his (478) hands pointing at your breast and making violent threats against your life, and when he comes in reach you knock him down with a club, and of the wound he dies. This would be excusable homicide, although it should afterwards turn out that the pistol was not loaded, and the design was only to terrify. Certainly if the appearances of danger are real instead of apparent merely, they are not the less admissible in evidence. The purpose here was to prove, not only that the circumstances surrounding the prisoner were such as to induce a reasonable belief of imminent danger, but that they were real; that the deceased had not made empty and unmeaning threats insufficient to move a man of ordinary firmness, but that from his known character as a violent and dangerous fighting man, a character well known to the prisoner, the danger was so imminent and unavoidable as to justify the taking of life.

It is true that the character of the deceased per se can never be material in the trial of a party for killing, because it is as much an offense to kill a man of bad character as a man of good character. If the killing is done with a felonious intent, the character of the deceased cannot come in question. But if the killing is done under such circumstances as to create a doubt as to the character of the offense committed, the general character of the deceased may be shown, if that character is known to the prisoner, because it then becomes material, and it may be a necessary fact to enable the jury to ascertain the truth, and as such it is involved in and becomes an essential part of the res gestae. S. v. Dumphey, 4 Minn. 438; S. v. Hicks, 27 Mo., 588; S. v. Keene, 50 Mo., 357; Am. Cr. L., 296; Wharton on Homicide, 215.

In the more recent trials of capital offenses the laws of evidence which once governed the courts have been much mitigated from their ancient rigor, and more latitude of investigation is allowed, in order that (479) the jury may be possessed of the true character of the transaction. And it must be conceded that a strong current of decisions in our sister States has considerably modified the stern rule of evidence as laid down in S. v. Barfield, 30 N.C. 344. The courts of this State, also, in subsequent decisions have more accurately defined and explained the limits of the general rule, and pointed out some of the exceptions to it where evidence of the general character of the deceased would be admissible. S. v. Hogue, 59 N.C. 381, and S. v. Floyd, 59 N.C. 392.

It was in evidence that the deceased had, a short time before the homicide, threatened to take the life of the prisoner if he did not keep away from Mrs. Tate's, which threats had been communicated to him. The prisoner also offered testimony to show other similar threats made by the deceased, but which had not been communicated. This evidence was competent, and should have been admitted for several reasons:

1. The uncommunicated threats were admissible for the purpose of corroborating the evidence of the threats which had already been given.

2. They were admissible to show the state of feeling of the deceased towards the prisoner, and the quo animo with which he had pursued his enemy to the house.

3. In ascertaining whether the prisoner had acted in self-defense, a most material question was, Who introduced the rock into the conflict, and when and for what purpose? Whether for offense or defense was it used? As to this important inquiry the evidence was wholly circumstantial, and testimony of both the general character and threats of the deceased was competent under the principles laid down in S. v. Tackett, 8 N.C. 210, and in Floyd's and Hogue's cases, supra. If the prisoner entered into the fight armed with both the pistol and the rock, of which there was evidence by his admission that he usually went so armed, then it was a case of murder or manslaughter, as the jury might consider (480) these with other facts as indicating or not indicating malice. But the prisoner contends that the deceased provoked the fight armed with the rock, as was evident from the severe contusions he received in the struggle from some such instrument on the front and side of his head. And to corroborate this view and fix the ownership of the rock, the prisoner offered evidence both of the violent character and deadly threats of the deceased. In this aspect of the case, the threats were equally admissible, whether communicated or uncommunicated, and in connection with the other facts indicating a felonious assault upon the prisoner would constitute a case of murder, manslaughter, or justifiable homicide, as the jury under proper instructions might determine upon all of the facts. S. v. Keener, 18 Ga. 194; S. v. Sloan, 47 Mo., 604; S. v. Heller, 37 Ind. 57; Cornelius v. Commonwealth, 15 B. Mon. (Ky.), 539; The People v. Scoggins, 37 Cal. 677; S. v. Dixon, 75 N.C. 275; 1 Starkie on Ev., 39; Roscoe Cr. Ev., 77.

Objections were taken to the charge of the court, but without foundation. The charge was minute, impartial, and able, and but for the exclusion of the testimony upon a view of the case which the prisoner had a right to present to the jury, the judgment would be affirmed. What new features the rejected testimony may develop we cannot foresee, but as the case is now presented it has in it more of the elements of murder than of manslaughter or justifiable homicide.

There is error.

PER CURIAM. Venire de novo.

Cited: S. v. Matthews, 78 N.C. 530; S. v. Chavis, 80 N.C. 357; S. v. McNeill, 92 N.C. 819; S. v. Gooch, 94 N.C. 1010; S. v. Hensley, ib., 1032; S. v. Rollins, 113 N.C. 732; S. v. Byrd, 121 N.C. 688; S. v. McIver, 125 N.C. 646; S. v. Sumner, 130 N.C. 721; S. v. Castle, 133 N.C. 777; S. v. Exum, 138 N.C. 608; S. v. Powell, 141 N.C. 787; S. v. Banner, 149 N.C. 526; S. v. Fisher, ib., 558; S. v. Peterson, ib., 535; S. v. Kimbrell, 151 N.C. 704, 706; S. v. Green, 152 N.C. 838; S. v. Baldwin, 155 N.C. 496; S. v. Price, 158 N.C. 647; S. v. Blackwell, 162 N.C. 680, 686; S. v. Heavener, 168 N.C. 164; S. v. Williams, ib., 197.

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