#### STATE v. K. BLENDON FERRELL.

(Filed 30 March, 1932.)

1. Homicide G a — Evidence in this case held sufficient to be submitted to the jury.

Where in a criminal prosecution the State’s evidence tends to show . that the defendant willingly entered into the fight with the deceased and killed him with a deadly weapon, a knife, the defendant’s motion as of nonsuit is properly refused, and a verdict of manslaughter will be affirmed on appeal. O. S., 4643.

*Si.*Criminal Law G c — Requested instructions as to weight of character evidence held properly refused in this case.

Where the defendant in a criminal action puts his character in evidence and testifies in his own behalf, testimony of his good character may be received in evidence both as bearing on his credibility as a witness and as substantive evidence on the issue of his guilt, but a request for an instruction that the “law presumes that a man of good character is not only less likely to commit a crime than a man of bad character, but also that a man of good character is more truthful and less likely to testify falsely under oath than a man whose character is not good” is *held*properly refused, the requested -instruction going beyond that to which the defendant was entitled.

Appeal by defendant from *Darnels, J.,*and a jury, at November Term, 1931, of Dubi-iam.

No error.

Tbe defendant was convicted of manslaughter and the judgment was that he be confined in the State’s prison for a period of not less than two nor more than three years. The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be considered in the opinion.

*Attoi’ney-General Brummiit and Assistant Attorney-General Seawell for the State.*

*McLendon <& Hedrick for defendant.*

ClaRksoN, J.

The defendant, at the close of the State’s evidence and at the close of all the evidence made motions “to dismiss the action or for judgment of nonsuit.” C..S-, 4643. These motions were overruled by the court below and in this we can see no error.

It was in evidence that the defendant entered into the fight willingly with one Janies Quick, and cut him with a knife, which caused his death.

Robert Davis, a witness for the State, testified, in part: “When James Quick was giving Mr. Ferrell the cigarette he did not have the bricks *476in bis band. Mr. Ferrell bad something in bis bands then. Tbe next thing I knew Quick was coming in tbe bouse hollering. I went out there, and be come to tbe bouse and then to tbe back door, and be was bleeding like tbe water spigot was turned on. . . . He was cut from under bis ear and clean around to his neck, right out to tbe tip end of 'bis chin. Quick came running in tbe bouse hollering to me, and said Hob *come*here, I am cut to death.’ When I come out of tbe door Mr. Ferrell was half way to tbe bridge coming this way. I saw James at tbe hospital about thirty-five or forty minutes after I put him in tbe truck or automobile. He was dead.”

Ed Boberts, a witness for tbe State, testified, in part: “I saw Ferrell and James Quick at that time in tbe yard of Bobert Davis. When I come along there, I beard some cursing, and looked and I saw that it was Mr. Ferrell, and I beard him say, ‘God damn you I will cut you/ there was another white man out there and two colored fellows. They were all there together. At tbe time I beard Mr. Ferrell cursing, I did not notice whether be bad anything in bis band or not. ... I run to tbe front door, and I said what is tbe matter out here, and tbe children said a white man is cutting a darkey to pieces, and when I got down there they bad taken him away.”

L. B. Henderson, a witness for tbe State, testified, in part: “I know where Bobert Davis lives, tbe bouse that this cutting took place in. As I passed Mr. Ferrell and Mr. Quick this afternoon, they were all arguing there in tbe street and yard, and I told Mr. Ferrell if I was be I would go away and keep out of trouble, and when I got away about as far as from here to tbe back end of tbe courtroom, I beard a man say that .be was cut, and I looked back and saw him going up tbe *steps on*bis knees and bands. I went down there. When I got back Mr. Ferrell was on bis truck. He bad started off to leave. When I passed they were arguing. I did not see any weapon. When I got back down there bis neck was cut.”

In *S. v. Miller,*197 N. C., at p. 448, tbe following is stated: “When on a trial for homicide, a killing with a deadly weapon is admitted or established by tbe evidence, tbe law raises two — and only two — presumptions against tbe slayer: first, that tbe killing was unlawful; and, second, that it was done with malice; and an unlawful killing with malice is murder in tbe second degree. *S. v. Walker,*193 N. C., 489; 137 S. E., 429; *S. v. Fowler,*151 N. C., 731, 66 S. E., 567.”

In *S. v. Parker,*198 N. C., at p. 634, is the following: “True, be said she was trying to cut him; but be was tbe aggressor; be not only entered into tbe combat willingly; be provoked it. Tbe homicide according to bis testimony was certainly nothing less than manslaughter. *S. v. Bald*
      *477
      *win,*152 N. C., 822; *S. v. Kennedy,*169 N. C., 288; *S. v. Merrick,*171 N. C., 788; *S. v. Evans,*177 N. C., 564.”

From a careful reading of the charge, we think the court below stated the law applicable to the facts, in fact read decisions of this Court on the law relative to the facts in this case.

The main contention of defendant is the refusal of the court below to give the following instruction: “The defendant, gentlemen of the jury, has offered his character in evidence, and you are to take this into consideration in reaching your verdict. You are to consider this not only in passing upon his guilt or innocence, but also in passing upon his credibility as a witness. The law presumes that a man of good character is not only less likely, to commit a crime than a man with a bad character, but also that a man of good character is more truthful and less likely to testify falsely under oath than a man whose character is not good.”

In *S. v. Whaley,*191 N. C., at p. 391-2, we find: “Evidence of the defendant’s good character is put in issue and when he also testifies in his own behalf, is competent (1) as bearing upon the credibility of his testimony and (2) as touching the question of his guilt or innocence. *S. v. Cloninger,*149 N. C., 567. Speaking to the subject in *S. v. Moore,*185 N. C., 637, *Hoke, J.,*said: Tt is fully recognized in this jurisdiction that in an indictment for crime, a defendant may offer evidence of his good character and have same considered as substantive testimony on the issue of his guilt or innocence. And where in such case a defendant has testified in his own behalf and evidence of his good character is received from him, it may be considered both as affecting the credibility of his testimony and as substantive evidence on the issue.’ ”

The defendant cites the above well settled law in support of his contention. But the prayer for instruction goes beyond the law above stated. It says: *"The law presumes that a man of good character is not only less likely to commit a crime than a man with a had character, hut also that a man of good character is more truthful and less likely to testify falsely under oath than a man whose character is not good.”*

In *S. v. Rose,*200 N. C., at pp. 344-5, the following is said: “In its charge the court had instructed the jury that if they found the facts to be as the evidence tended to show, beyond a reasonable doubt, they should return a verdict of guilty. Having correctly imposed upon the State the burden of proof beyond a reasonable doubt, the court declined to instruct the jury that defendant was presumed to be innocent. While the court might have well complied with the request of defendant’s counsel, under the authority of *S. v. Boswell,*194 N. C., 260, 139 S. E., 374, we cannot hold that the refusal to give the instruction as requested *478was error for which the defendant is entitled to a new trial, as a matter of law.” *S. v. Herring,*201 N. C., at p. 549.

“The courts below ordinarily in the charge to the jury apply the 'presumption of innocence’ in the interest of life and liberty, and enlarge on 'reasonable doubt/ 'fully satisfied’ or 'satisfied to a moral certainty.’ *S. v. Sigmon,*190 N. C., 687-8; *S. v. Tucker,*190 N. C., 709; *S. v. Walker,*193 N. C., at p. 491. When instructions are prayed as to 'presumption of innocence’ and to enlarge on 'reasonable doubt’ it is in the sound discretion of the court below to grant the prayer.” *S. v. Herring, supra,*at p. 551.

*We*know of no sucli presumption as contended for in defendant’s prayer, and the court below did not commit error in refusing to give it. On cross-examination the defendant testified, in part: “That was ten years ago that I was up in court for liquor. I am thirty-one years old. I was up there for violating the liquor law in 1922, and that is the time I went to the road, or something like that. ... In 1924, in the recorder’s court, I was up about some whiskey, and a colored fellow. I paid a fine of $300. . . . I think I was up in recorder’s court in 1923, something like that. It was just an ordinary fight with George Tilley. I will not deny that I was up in recorder’s court for a fight with my brother. I was charged with cutting a Negro and assaulting him. Q. What were you fighting about, and where did that take place? What were you given for that? A. Twelve months.” We think the defendant has no cause to complain — the court below was merciful. From a careful review of the entire record, we find

No error.