#### STATE v. SINA POPE GODWIN.

(Filed 7 April, 1937.)

Homicide §§ 11, 27f — Person upon whom unprovoked murderous assault is made may stand ground and kill adversary if necessary in self-defense.

Defendant, on trial for homicide, introduced evidence that she was on the screened porch of her home when deceased, her husband, came to her home, that as he opened the screen door of the porch he got a pistol from his pocket and started shooting, that defendant then got a pistol and returned his fire, and that both of them were wounded in the fight, and that deceased died as the result of his wounds in a few minutes thereafter. *Held:*It was error for the court to fail to charge the law upon the facts as shown by defendant’s evidence, that a person upon whom a murderous assault is made and who is without fault, is not required to retreat, but may stand his ground and kill his adversary if it appears to him to be necessary to save his own life or protect himself from great bodily harm, the necessity to he determined by the jury on the facts as they appeared to defendant. O. S., 564.

Appeal by defendant from *Granmer, J.,*at November Term, 1936, of HabNett.

New trial.

Tbe defendant was tried on an indictment in wbicb sbe was charged witb tbe murder of Furman E. Godwin. C. S., 4614, and 0. S., 4642.

When tbe action was called for trial, tbe solicitor for tbe State announced to tbe court tbat be would not contend tbat on tbe evidence wbicb be would offer for tbe State tbe defendant is guilty of murder in tbe first degree, but would contend tbat sbe is guilty of murder in tbe second degree or of manslaughter, as tbe jury should find tbe facts to be from all tbe evidence. Tbe defendant entered a plea of not guilty; sbe relied on her plea of self-defense.

Tbe evidence for tbe State tended to show tbat between 4 and 5 o’clock p.m., on 7 July, 1936, at her borne in or near tbe town of Dunn in Harnett County, North Carolina, tbe defendant shot and killed tbe deceased, Furman E. Godwin; tbat tbe deceased was tbe husband of tbe defendant, and tbat sbe shot him witb a pistol, when be came on tbe back porch of her borne, within ten or fifteen minutes after sbe bad returned to her borne from a visit to tbe borne of her parents; tbat on *420several occasions shortly prior to the homicide the defendant had threatened to kill the deceased; and that the defendant as she was returning to her home on the day of the homicide had a pistol in her possession, which she exhibited to several persons, saying that she had the pistol for her protection.

After he was shot, the deceased went out of the porch into the yard of defendant’s home, where he soon died of his wounds. There were at least three wounds on the body of the deceased, each caused by a pistol shot. The chief of police of the town of Dunn testified that when he went to the home of the defendant, immediately after the homicide, he found the body of the deceased lying on the ground in the back yard, with a pistol beside him, between his thumb and his elbow. The defendant was then in the house, lying on her bed. There were wounds on her body caused by pistol shots. She was under the care of a physician and on his advice was taken immediately to a hospital, where she remained for several weeks. An examination -at the hospital disclosed that her wounds were superficial.

Mrs. J. C. Pope, a witness for the defendant, testified as follows: “I am the mother of Sina Pope Godwin. She came to my home the night before the homicide, and spent the night there. She frequently spent the night at my home. She left my home the next morning between 9 and 10 o’clock, and went to her home; she returned to my home, bringing with her a small suitcase, and some of her clothes. She remained at my home until after dinner. She and I left my home in her automobile about 3 o’clock p.m. We first drove to a filling station, where we got some gas. We then drove to the home of my son, Albert Pope. When we got there, his wife said to me that she was just fixing to go to my home. We told her that we would take her and her baby there in defendant’s automobile. She got into the automobile with her baby, and we drove to the home of the defendant. When we drove into the yard there, the defendant got out of the automobile, saying: U believe I will feed my biddies.’ She went to the barn, and got a bucket of chicken feed; she fed her chickens; she caught a chicken and gave it to me; she then spoke to some hoys who were plowing near her house; she did not have a pistol in her hand at this time; she did not have a pistol while we were together in the automobile.

“After she spoke to the boys, she went into the house. I could see her on the screened porch from the automobile in which I was sitting. She first went to the refrigerator on the porch and took the pan which was under the refrigerator to the sink and emptied it. While doing this, she spilled water from the pan on the floor of the porch. She got a broom and was sweeping up the water. While she was doing this, Furman Godwin drove up into the yard in his automobile. He got out *421of the automobile and passed us as he went toward the house. He said to us, ‘Howdy.’ We replied, ‘Howdy.’ He looked like he was mad as fire. He went toward the steps leading to the back porch. When he was on the second step, he opened the screen door with his left hand, and put his right hand into his hip pocket. I cried out: ‘God save my child.’ As soon as he got his pistol from his hind pocket, he began to fire at the defendant, who was then on the porch, which was enclosed by a screen. When he had fired at her two or three times, the defendant said: ‘Oh, Furman, please don’t kill me.’ They then ran together on the porch. He knocked her back against the pump. She reached over and got a pistol which was lying on the pump shelf. After that, they were both shooting. She ran out of the porch and as she came down the steps she dropped her pistol and cried out to me, ‘Oh, Ma, I’m killed; I’m killed.’ The blood was flying from her hand. Furman then came out of the porch with a pistol in his hand. He went around the corner of the house, staggered, and fell to the ground — dead.”

There was other evidence on behalf of the defendant tending to support her contention that she shot and killed the deceased in defense of her own life. This evidence was contradicted by evidence for the State, which tended to support the contention of the State that defendant is guilty of murder in the second degree, or, at least, of manslaughter.

In its charge, the court instructed the jury as follows:

“The law of North Carolina is that a person has a right to kill in self-defense. He may do so whenever it is necessary for him to do so to defend his own life or to protect himself from great bodily harm. He may do so when it is not actually necessary, if he believes it to be necessary and has a good ground for his belief. But the jury and not the defendant are the judges of whether the ground is reasonable.

“I further instruct you, gentlemen of the jury, that a prisoner cannot invoke the right of self-defense if there be opportunity to retreat and avoid the difficulty.

“Furthermore, a person claiming the right of self-defense, and exercising it, must do so in good faith and with reasonable firmness, and if more force is used than is necessary in the circumstances, the defendant would be guilty, at least, of manslaughter.

“I instruct you in this case, that if you find that .the defendant was acting in self-defense, she must have done so in good faith and with reasonable firmness. If she used more force than was necessary under the circumstances, you, the jury, and not the defendant, being the judges of whether or not she used more force than was necessary, she would be guilty, at least, of manslaughter.

“There is another phase of this case to which I invite your attention. The defendant contends that they were fighting, and that she was *422fighting to save herself; that her husband began the assault on her and that she replied. I further instruct you, gentlemen of the jury, that a person cannot invoke the claim or right of self-defense if he enters the fight willingly. That means voluntarily, aggressively, and without legal excuse, unless and until he abandons the combat and his adversary has notice that he has abandoned the conflict; and hence, in this ease, if you find from the evidence that the prisoner, Sina Pope Godwin, entered the fight with her husband willingly, that is to say, aggressively and without legal excuse, she cannot claim or *make*the right of self-defense, or invoke the right of self-defense unless and until she abandoned the fight or combat, and that her husband, Furman Godwin, had notice that she had abandoned the fight or combat.”

The defendant in apt time excepted to these instructions, and to the failure of the court to instruct the jury as required by C. S., 564. There was a verdict that defendant is guilty of murder in the second degree. The jury recommended the defendant to the mercy of the court.

It was ordered and adjudged by the court that the defendant be confined in the State’s Prison for a term of not more than fifteen or less than ten years. The defendant appealed to the Supreme Court, assigning numerous errors in the trial.

*Attorney-General Seawell and Assistant Attorney-General McMullan for the State.*

*Boss & Boss, J. B. Young, and J. A. Jones for defendant.*

CONNOR, J.

Conceding without deciding that the instructions of the court to the jury at the trial of this action, which the defendant assigns as error on her appeal to this Court, are correct as general propositions of law, and *are*applicable to the facts as shown by the evidence for the State, we must hold that there was error in the failure of the court to instruct the jury as to the law applicable to the facts as shown by the evidence for the defendant. C. S., 564. If the facts with respect to the homicide are as shown by the evidence for the defendant, and the jury shall so find, the defendant was not required to retreat before she could invoke her right to kill her assailant in defense of her own life, or in protection of her own body from great harm. See *S. v. Thornton, ante, 413.*When an attack is made with a murderous intent, the person attacked is under no obligation to fly, but may stand his ground and kill his adversary, if need be. *S. v. Glenn,*198 N. C., 79, 150 S. E., 663. This principle is so well settled in the law of homicide in this State that no citation of authority in its support is necessary. See *S. v. Bryson,*200 N. C., 50, 156 S. E., 143; *S. v. Dills,*196 N. C., 457, 146 S. E., 1; *S. v. Gaddy,*166 N. C., 341, 81 S. E., 608; *S. v. Blevins,*138 N. C., 668, 50 S. E., 763.

*423As the defendant is entitled to a new trial for error in the failure of the court to instruct the jury as required by the statute (C. S., 564), we shall not discuss other assignments of error on this appeal. These assignments of error tend to sustain the contention of the defendant that her conviction of murder in the second degree in this action was the result of the failure of the court to give her the protection of well settled principles of law at her trial.

The defendant is entitled to a new trial. It is so ordered.

New trial.