#### State of West Virginia *v.*Lukie Curry

(No. 7219)

Submitted September 20,' 1932.

Decided September 27, 1932.

*G. ■G. Chambers,*for plaintiff in error.

*H. B. Lee,*Attorney General, and *W. Elliott Nefflen,*Assistant Attorney General, for the State.

Hatohbk, Pbesident :

Lukie Curry seeks to reverse a conviction of voluntary manslaughter for the killing of Eugene Thompson in-Logan County, August 30, 1931.

The evidence developed by the state is substantially as follows; Curry and Thompson lived on adjoining lots. About two weeks before the killing they had an altercation across their division fence in which Thompson grabbed Curry’s hat and struck him in the face with it. Curry backed away and shouted, “You had better be gone when I *550come back or I’ll kill you.” A short while afterwards Thompson was arrested upon complaint of Curry’s father and jailed for drunkenness. During Thompson’s committment he was relieved of his pistol and a pocket knife. Following his release from jail he was heard to say upon two occasions that he had no knife. On the morning of the homicide he came to the home of John Kalota (about three hundred feet from Currey’s house) in a half drunken condition, saying he was going to find out who broke his window (broken while he was in jail), and went in the direction of Curry’s house. In a few moments Kalota’s attention was attracted by a pistol shot and he saw Thompson on the porch at Curry’s home, and Curry shoot two times from his doorway and Thompson fall backward upon the porch. Kalota hurried over and observed an open pocket knife on the porch near the body of Thompson, who was then dead. Later an officer picked up a knife on the porch which was introduced in evidence. The wife of the deceased produced a pocket lmife which she said was the only one he had and which she had obtained from the jailer several days after the killing. Her son corroborated this evidence.

In substance the evidence for defendant is that he had known thé deceased for several years and had never had any trouble with him prior to the altercation at the fence. At that time defendant says deceased called him to the fence ostensibly to shake hands but instead struck him with his own hat and drew a pistol and threatened to kill him. Deceased was drinking then and had the reputation of being a dangerous man when drinking. He threatened defendant’s life after being let out of jail which threat was communicated to the defendant. A pounding on defendant’s door awakened him about 6:30 on the fatal morning. After learning the identity of the caller, he secured his pistol and opened the door holding the pistol down at his side. Deceased was on the porch, with his right hand in his pocket, and cursed defendant, asking why he broke out the window light. Defendant replied that he new nothing about the window light, to go away, and that he wasn’t going to take any more chances with him. Deceased cursed defendant again, and *551saying, “I’m going to bill you,” started forward, drawing Ms band from bis pocket. As be did so, defendant shot until deceased began to fall. "While be was falling, an open knife dropped to tbe poreb. Tbe defendant is corroborated as to tbe details of tbe shooting by bis brother and a woman who were in tbe bouse at the time. Tbe officer who took tbe knife from tbe porch identified it as tbe same knife be bad taken from Thompson when be was under arrest a few days prior to tbe killing. Tbe officer said be returned tbe knife to Thompson when tbe latter was released from custody. In rebuttal several witnesses who bad seen tbe knife on tbe porch said that tbe knife introduced by tbe officer was not tbe one they saw.

Tbe defendant contends that be shot Thompson in self-defense and should be acquitted on that ground as a matter of law. Tbe evidence as to tbe open knife on tbe porch is unsatisfactory. Tbe record does not disclose tbe demeanor of tbe defendant and bis witnesses when testifying; so we cannot say that tbe jury should have accepted implicitly their testimony as to tbe alleged overt act of Thompson. Besides, tbe defendant was secure from invasion and attack within bis walls until be invited both by opening tbe door. He gives as bis reason for securing bis pistol that be expected Thompson *to hurt or hill him*when be should open the door. Instead of remaining in safety within his closed house and avoiding the impending conflict, he willfully precipitated it. One may defend his home when invaded, and one not at fault may stand his ground when attacked. But one in no imminent danger from a minatory foe may not purposely confront him and then invoke self-defense for an immediate homicide. The law nominates no private executioner. See generally Bishop’s New Cr. Law (8th Ed.),, sec. 869, par. 1 and 3"; Wharton on Homicide (3rd Ed.), sec. 290.

Error is charged in the giving of certain instructions and to the conduct of an attorney assisting in the prosecution. We have gone carefully into both charges and find no prejudice to the defendant.

The judgment of the circuit court is affirmed.

*Affirmed.*