#### STATE v. THOMAS W. MANEY, ABRA MANEY, and GUY ANDERS.

(Filed 10 June, 1927.)

Criminal Daw — Assault—Husband and Wife — Self-Defense — Excessive Force — Questions for Jury.

Where a wife is assaulted in the presence of her husband by one using insulting language relating to her innocence and virtue, and the assailant had put his arm about her, the husband has the same right as the wife in using sufficient force to repel the attack, and the question of whether the force he used in striking the assailant in the face was excessive for that purpose, or prompted by a spirit of revenge, etc., is one for the jury.

Appeal by defendant Thomas *W.*Maney from *Stack, J.,*and a jury, at August Term, 1926, of Buitoombe.

New trial.

*Attorney-General Brummitt and Assistant Attorney-General Nash for the Staie.*

*J. B. Swain, B. Sidney King, and A. Hall Johnston for defendant.*

ClaeksoN, J.

Tbe defendant Thomas "W. Maney, Abra Maney, and Gruy Anders were indicted for assault with intent to kill Gus Harwood. Abra Maney and Guy Anders were acquitted by tbe jury, and Thomas *W.*Maney was convicted of simple assault. Thomas *W.*Maney was sentenced to serve 30 days in jail and pay all cost.

Thomas *W.*Maney testified in part: *“I*struck him in defense of my wife tbe first time, in defense of myself when be tried to cut me with a razor. When I bit him with my fist tbe first time, be bad a bold of my *35wife, and I struck bim to make bim turn ber loose. ... I struck Gus Harwood because be was assaulting my wife, and using tbat vile language to ber. I would do tbe same thing, Mr., if be assaulted your wife in my presence.”

Mrs. Tbomas W. Maney testified in part: “Gus Harwood was in a drunken condition, and wben be saw me be come up to me in a very insulting manner and took bold of me, and said some very insulting remarks to me as to wbat be intended to do to me (language is too vulgar to use). But it reflected upon my purity and virtue. Wben be did tbis, my busband, Tom Maney, struck Harwood witb bis fist and made bim release me, and tben Harwood turned on my busband and made an assault on bim in sucb a violent manner, and used sucb vile and insulting language in my presence, and in tbe presence of my children, tbat I was forced to run into tbe bouse and gather up my little children and leave borne, going into tbe woods, and wben I left, Gus Harwood and bis friends were assaulting my busband.”

Tbe testimony of Tbomas W. Maney was substantially tbat of bis wife, and they were corroborated by Abra Maney and Guy Anders. A number of ’reputable citizens testified tbat tbe general reputation of defendant was good.

Tbe court below charged tbe jury as follows, to which exception and assignment of error was duly made: “As to Tom Maney, if you find tbat be struck Gus Harwood, if you find beyond a reasonable doubt tbat tbe defendant Tom Maney struck Gus Harwood, at first because be put bis arms around bis wife and for using certain language before bis wife and children, tben be would not have been justified in bitting Gus Har-wood in tbe face and knocking bim down.” We think tbe charge of tbe court below is not borne out by tbe law, and cannot be sustained under the facts and circumstances of tbis case. ■

Cooley’s Blackstone, Yol. 2 (3 ed.), p. 2, lays down tbe law as follows: “Tbe defense of one’s self, or tbe mutual and reciprocal defense of sucb as stand in tbe relations of busband and wife, parent and child, master and servant. In these cases, if tbe party himself, or any of these of bis relations be forcibly attacked in bis person or property, it is lawful for bim to repel force by force; and tbe breach of tbe peace which happens is chargeable upon bim only who began tbe affray. For tbe law, in tbis case, respects tbe passions of tbe human mind; and (wben external violence is offered to a man himself, or those to whom be bears a near connection), makes it lawful in bim to do himself tbat immediate justice, to which be is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that tbe future process of law is by no means an adequate remedy for injuries accompanied witb force; since it is impossible to say to wbat wanton lengths *36of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defense, therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law, particularly, it is held an excuse for breaches of the peace, nay, even for homicide itself; but care must be taken that the resistance does not exceed the bounds of mere defense, and prevention; for then the defender would himself become an aggressor.” Brill, Vol. 2, Cyc. Criminal Law, secs. 722, 723.

In 1 Bishop on Criminal Law (9 ed.), p. 623, it is said: “Ordinarily, if not always, one may do in another’s defense whatever the other might in the circumstances do for himself. The common case is where a father, son, brother, husband, servant, or the like, protects by the stronger arm the feebler. The right to do this is unquestioned.”

In *S. v. Johnson,*75 N. C., at p. 175, it is said: “The proposition is true that the wife has the right to fight in the necessary defense of her husband, the child in the defense of his parent, the servant in defense of his master, and reciprocally; but the act of the assailant must have the same construction in such cases as the act of the assisted party should have had if it had been done by himself; for they are in a mutual relation one to another. Although the law respects the human passions, yet it does not allow this interference as an indulgence or revenge, but merely to prevent injury. The son, therefore, is allowed to fight only in the necessary *defense*of the father; and to excuse himself, he must plead and show that Shipwash could have beat his father, had the son not interfered. 3 Bl., 3, and note; 1 Hale Pl. Cr., 484; Bac. Ab. Master and Servant, P.” *S. v. Brittain,*89 N. C., 481; *S. v. Bullock,*91 N. C., p. 614; *S. v. Cox,*153 N. C., 638; *S. v. Greer,*162 N. C., 640; *S. v. Gaddy,*166 N. C., 341; *Roberson v. Stokes,*181 N. C., at p. 63; *S. v. Holland,*193 N. C., p. 713.

The testimony of Mrs. Maney was to the effect that G-us Harwood, in a drunken condition, came up to her and in a very insulting manner took hold of her and made insulting remarks, too vulgar to use, reflecting on her purity and virtue. Her husband, the defendant, struck him with, his fist to make Harwood turn her loose. She had a right to strike Harwood to make him turn her loose, and her husband had the same right to strike him. The defendant did what he had a right to do. Such action was prompted by the primary law of nature — a husband’s right to protect and defend his wife. . If .true, he acted under the highest impulse and instinct to protect the person of his wife from one who had assaulted her, and should not be held to an accountability by the law.

The court below charged the jury that if they found beyond a reasonable doubt that defendant Maney struck Harwood, at first because he *37put Ms arms around Ms wife and for using certain language before Ms wife and children, that be would not be justified in bitting Harwood in tbe face and knocking Mm down. "We cannot sustain tbe charge. It was a question for tbe jury to say, under tbe facts and circumstances of tbe ease, whether defendant bit Harwood in tbe face and knocked him down to make Harwood turn bis wife loose. He bad a right to defend bis wife against tbe assault of Harwood. Tbe question of excessive force was for tbe jury.

In tbe oft-quoted case of *S. v. Perry,*50 N. C., at p. 10, tbe rule of abusive language is thus stated: “If one person, by such abusive language towards another as is calculated and intended to bring on a fight, induces that other to strike him, be is guilty, though be may be unable to return tbe blow. He is undoubtedly tbe immediate cause of tbe breach of tbe peace, and is morally tbe more guilty of tbe two.”

In such a ease, both are guilty of an affray — the one who strikes tbe blow and tbe one who uses tbe abusive language that prompted tbe blow. Tbe vice in tbe charge is that tbe court below coupled two propositions in one and said that defendant was not justified if be struck Harwood in tbe face and knocked him down (1) because be put bis arms around bis wife, (2) and for using certain language before bis wife and children. As to. tbe first proposition, it was for tbe jury to say whether be was justified in striking him in tbe face and knocking him down to make him turn loose bis wife, and in so doing, whether be used excessive force. As to tbe second proposition, it was for tbe jury to say whether defendant struck Harwood for tbe abusive language used before bis wife and children.

Under tbe facts and circumstances of this case, “Tbe measure of force which tbe defendant was permitted to use under such circumstances ought not to be weighed in ‘golden scales.’ ” *S. v. Hough,*138 N. C., at p. 668. Tbe probative force of tbe evidence is for tbe jury.

For tbe reasons given, there must be a

New trial.