#### STATE v. ALLEN DILLS and IDA DILLS.

(Filed 2 January, 1929.)

1. Homicide — Evidence—Weight and Sufficiency.

Where the evidence tends to show that the deceased, unarmed, came to the place where the defendants and others were fighting together, and in trying to pacify them he was turned upon hy the defendants, and that the husband shot the deceased and hilled him, while his wife joined in the assault with a stick, with further evidence of a previous encounter between the parties, and of motive-: *Held,*the evidence that the assault on the deceased was a result of concerted agreement between the! defendants, and that there was a preconceived purpose and joint assault was sufficient to take the case to the jury, and it was not error for the trial court to refuse to dismiss the action against the feme defendant.

2. Homicide — Excusable or Justifiable Homicide — Defense of Others— Questions for Jury.

Where the husband and his wife are tried for murder in the second degree, and there is evidence that he fired the fatal shot in self-defense while his wife assisted him, an instruction that she must satisfy the jury that she fought in her own defense is reversible error when there is evidence, and the feme defendant, contends that she was engaged in defending her husband.

3. Homicide — Excusable or Justifiable Homicide — Self-Defense—Duty to Retreat.

Where the defendant on trial.for homicide is without fault in bringing oh the affray, and is,assaulted with a pistol and is put in fear, and has reasonable grounds to fear, that his life wiil be taken or that great bodily harm would be inflicted and it reasonably appears to him to he *458necessary to kill the deceased to save his own life or to protect himself from great bodily harm, he is not required as a matter of law either to retreat or to withdraw from the combat, and his killing the deceased under these circumstances is excusable on the principle of self-defense.

Appeal, by defendants from *Moore, J.,*at August Term, 1928, of Macon.

Tbe defendants were convicted of murder in tbe second degree and from tbe judgment iwonounced they appealed. New trial.

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

*Moody & Moody and B. D. Sislc for defendants.*

Adaacs, J.

Tbe defendants, Husband and wife, were indicted for tbe murder of Dave Waldroop but were not prosecuted for murder in tbe first degree. Tbeir testimony in almost every essential element is diametrically opposed to that of tbe prosecution. Tbe homicide occurred on 24 March, 1928. Tbe defendants, tbeir child, and Bill Sbope, a brother of tbe female defendant, occupied a bouse situated on tbe side of a mountain, and in front of tbe bouse was a rugged road across which ran a branch a short distance lower down. About 125 feet up tbe mountain, on tbe same side of tbe road, was a bouse in which Mack Waldroop (a son of tbe deceaséd) and bis wife lived, and about 300 feet farther up tbe road was another bouse occupied by tbe deceased and bis other sons, Luther and Bufus. Tbe record indicates that tbe men other than Sbope were tenants of Ed Cruse, tbe Waldroops having recently moved to tbe land.

Tbe State offered evidence tending to show that on tbe day of the' homicide at 8 o’clock in tbe morning, Mack Waldroop beard Ida Dills “talking vicious” to bis wife, “fulminating accompaniments agitating her rhetoric”; that she retired after aiming a loaded gun first at bis wife then at him; that Allen Dills came to a side gate about thirty minutes afterwards flourishing an automatic pistol and menacing fatal injury, not only to Mack Waldroop and bis wife, but to the deceased and bis other sons who bad recently appeared; that Allen went away apparently content with a threat to take Mack’s life before 12 o’clock; that about this hour Mack drove bis mules to tbe branch to water them; that as be passed Allen’s bouse be was assaulted by tbe defendants and Bill Sbope — by Allen with bis “automatic” and by Ida with a club, Sbope meantime bolding Mack’s shoulder and afterwards using a stick; that tbe deceased came up unarmed and tried to quiet tbe assailants, whereupon Allen Dills shot tbe deceased through tbe heart'and caused bis *459instant death; that Allen then pointed bis pistol at Mack and that Luther fired a shotgun at Allen and wounded him.

On the part of the defendants there was evidence tending to show that in the melee between Allen’s wife and Mack’s wife each had a gun; that the encounter between Allen and Mack at eight-thirty was a harmless “cuss-fight”; that Allen was going across the road for stovewood when he met Mack at 12 o’clock; that no assault was made on Mack; that the deceased was the aggressor, assaulting Allen with a pistol, and that Allen shot the deceased in self-defense.

It would clearly have been error to dismiss the action as to Ida Dills. There is ample evidence for a reasonable inference that the assault on Mack, immediately before the fatal shot, was the result of a concerted agreement between Shope and the defendants, and that the shot fired by Allen Dills was in legal effect the deed of all. *S. v. Bowman,*152 N. C., 817; *S. v. Merrick,*171 N. C., 788. It was testified that they turned Mack loose and made a joint assault upon the deceased the moment they saw him. There being evidence of a preconceived purpose and a joint assault it would have been an inadvertence to hold that Ida Dills was excusable merely because she did not actually compass the homicide. *S. v. Finley,*118 N. C., 1162.

There was error, however, in the instructions given the jury. His Honor charged the following as the essential elements of self-defense: (1) The defendant must be free from fault, that is, he must not say or do anything for the purpose of provoking a, difficulty, nor must he be disregardful in this respect of any wrongful word or act;' (2) there must be a present impending peril to life or great bodily harm, either real or so apparent as to create the honest belief in the mind of the defendant that there is an existing necessity to take the life of the person intended to be killed at the time he attempts to take it or takes it; (3) there must be no convenient or reasonable mode of escape from the danger by retreat or by declining the .combat.

It will be noted that the second and third clauses in substance embody the instruction that if the deceased was in the act of making such an assault upon the defendant, Allen Dills, as created in his mind a reasonable apprehension of impending peril to his life or of great bodily harm it was incumbent upon the defendant to show that there was no reasonable mode of escape from the danger by retreat or by declining the combat.

In *S. v. Clark,*134 N. C., 698, after defining “felonious assault” as an assault made with murderous intent or with intent unlawfully to kill, the Court said: “Whether a felonious assault was being made or not, if the defendant, from the circumstances and surroundings as they then appeared to him, reasonably apprehended that the deceased was *460assailing bim witb tbe intent to kill bim or to do bim great bodily barm, be bad tbe right, if be was not bimself already in fault, .to stand bis ground and defend bimself, and, if necessary, to take tbe life of bis assailant; and this would be true, tbougb it afterwards appeared that tbe deceased did not in fact intend to commit a felonious assault. *S. v. Matthews,*78 N. C., 523; *S. v. Barrett, supra,*and cases cited.” *S. v. Blevins,*138 N. C., 669; *S. v. Blackwell,*162 N. C., 672, 683; *S. v. Johnson,*166 N. C., 392; *S. v. Pollard,*168 N. C., 116; *S. v. Bost,*192 N. C., 1. If Dills was without fault and tbe deceased assaulted bim witb a pistol and by reason of sucb assault Dills actually apprehended and bad reasonable grounds to apprehend that bis life was in danger or that be was in danger of great bodily barm and that it was necessary or reasonably appeared to bim to be necessary to kill tbe deceased to save bis own life or to protect bimself from great bodily barm be was not required as a matter of law either to retreat or to withdraw from tbe combat, and if under these circumstances, in tbe exercise of ordinary firmness, be shot and killed tbe deceased, tbe homicide would be excusable upon tbe principle of self-preservation. But to have tbe benefit of this doctrine be must show that be was free from blame and that be took life only when it was necessary or apparently necessary to save bis own life or to protect bimself from great bodily barm. As stated in *S. v. Blevins, supra,*it is otherwise in ordinary assaults, even witb deadly weapons. In sucb cases a man is required to withdraw, if be can do so, and to retreat as far as may be consistent witb bis own safety, tbo'ugb as said in *S. v. Dixon,*75 N. C., 275, 279, be may repel force by force and give blow for blow. *S. v. Kennedy,*91 N. C., 572. In bis charge tbe trial judge inadvertently confused these principles.

In reference to Ida Dills’ participation *the*judge gave this instruction : “If she was aiding and abetting her husband who did use a deadly weapon, then if you find she was aiding and abetting her husband who admits be used a deadly weapon, then tbe burden would still be on her to satisfy you that she fought and did wbat she did in her own self-defense.”

Allen Dills contended that be shot tbe deceased in self-defense and bis wife contended that she was engaged in defending her husband. Whether she aided bim in an unlawful assault or only in his lawful defense is a matter which should have been explained and submitted to tbe jury. *S. v. Cox,*153 N. C., 638; *S. v. Greer,*162 N. C., 640, 649; *S. v. Gaddy,*166 N. C., 341.

For error in instructions there must be a

New trial.