#### STATE v. GRANT RIDDLE and EMORY RIDDLE.

(Filed 26 November, 1947.)

1. Homicide § 2: Criminal Law § 8—

Where tbe State’s evidence tends to show that defendants were the aggressors and acted in concert in making an armed attack, it is immaterial which one of them fired the shot inflicting’ the fatal wound.

2. Homicide § 27f: Criminal Law § 53d—

Defendants introduced evidence that deceased was a man of violent character. *Seld:*An instruction during the trial to the effect that such evidence was competent upon the plea of self-defense, without any instruction in the charge or elsewhere applying such evidence to the question of defendants’ reasonable apprehension of death- or great bodily harm from the attack which their evidence tended to show deceased had made on them, is insufficient to meet the requirements of G. S., 1-180, notwithstanding the absence of a request for special instructions.

Devin, J., dissenting.

Babnhell, J., concurs in dissent.

DEFENDANTS’ appeal from *Gwyn, J.,*at February Term, 1947, of. Madison.

*Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.*

*Galvin R. Bdney and John H. McElroy for defendants, appellants.*

Seawell, J.

Tbe defendants, and others not in tbe appeal, were eacb separately indicted for tbe murder of Andrew Hoyle. Since tbe evidence related to tbe same transaction tbe indictments were consolidated and beard together. Tbe two appealing defendants were convicted — Grant Biddle of murder in tbe second degree, and Emory Eiddle of manslaughter.

There are over 40 assignments of error in tbe voluminous record, and, since a new trial must be granted, we follow tbe rule to omit discussion of those matters not likely to recur on another bearing.

Tbe occurrence resulting in tbe death of Hoyle took place near bis bouse in tbe mountains of Madison County. There was an armed fight *252in wbicb Hoyle and a son, on tbe one part, and numerous persons on tbe other, including tbe defendants, took part. As tbe result of tbe fight Andrew Hoyle fell fatally wounded, and died shortly thereafter, and numbers of tbe other group were wounded by a shotgun carried by tbe younger Hoyle.

Tbe evidence is contradictory as to who was tbe aggressor and as to wbicb of tbe opposite group fired tbe fatal shot. There is evidence, however, tending to show that defendants acted in concert, and it is, therefore, not material wbicb inflicted tbe lethal wound. There is sufficient evidence, notwithstanding its conflict, to sustain a conviction and tbe demurrer each defendant made to tbe evidence was properly overruled.

However, tbe defendants presented evidence tending to show that they acted in self-defense — each of them — entitling them to a proper instruction to tbe jury on that phase of tbe case; and tbe appellants complain of prejudicial omission in that regard.

Tbe defendants introduced evidence tending to show that tbe deceased bad tbe reputation of being a man of violent character, and tbe trial judge permitted tbe State to introduce rebutting evidence. Before tbe formal charge to tbe jury and in tbe course of tbe trial, tbe court made tbe following observation:

> “Gentlemen of tbe jury, yesterday tbe defendants in this case offered evidence tending to show that tbe deceased man, Andrew Hoyle, was a man of dangerous and violent character. Where defense interposed is that of self-defense such evidence is competent. Evidence of tbe general reputation of tbe deceased is not competent or material in tbe case, but as tbe Court has stated, where tbe defendant interposed bis self-defense, then it is proper to show that tbe deceased was a man of dangerous and violent character.”

If this may be considered in tbe light of an instruction to tbe jury, wbicb because of its allocation in tbe proceeding we doubt, it appears to be tbe only correlation attempted between tbe admitted testimony that deceased was a man of violent character and disposition and tbe plea of self-defense. Tbe State contends that it satisfies G. S., 1-180, as a sufficient substantive instruction and that if tbe defendants desired anything further by way of subordinate elaboration they should have asked for it.

W"e think, however, that while tbe jury, in its process of thinking, might have made tbe correct application of tbe principle underlying tbe evidence, this did not relieve tbe court from more directly and clearly instructing them and explaining to them tbe bearing tbe reputation of tbe deceased as a violent man might have on defendants’ reasonable apprehension of death or great bodily barm through tbe attack to wbicb their evidence pointed.

*253For this inadvertent error in an able charge, there must be a new trial. It is so ordered.

New trial.

DeviN, J.,

dissenting: I cannot agree that a new trial should be ordered in this case. The ground upon which it is awarded seems to me to be of insufficient importance to set aside the verdict and judgment reached after full hearing and a lengthy trial. Even if the trial court’s reference to this type of character evidence as offered was not as full as it might have been, the court seems to have sufficiently correlated the evidence to the plea of self-defense. The jury heard all the evidence and a full and complete charge from the court as to the law, and I cannot see that by the language quoted the jury was thereby influenced to render an improper verdict. The burden is on the defendant here “not only to show error but also that he was prejudiced thereby to the extent that the verdict of the jury was thereby probably influenced against him.” *Rea v. Simonwitz,*226 N. C., 379, 38 S. E. (2d), 194. The error must be “material and prejudicial amounting to the denial of some substantial right.” *Wilson v. Lumber Co.,*186 N. C., 56, 118 S. E., 797.

I think the verdict of the jury should be upheld and the judgment of the Superior Court affirmed.

BaeNhill, J., concurs in dissent.