STATE v. JACOB DAVIS PHILLIPS, 262 N.C. 723

HiggiNS, J. The defendant reported to the officers that he and Marjorie Poteat were in the back seat of his automobile, parked off the golf course road, when some person opened the door on the woman’s side, she screamed, the defendant grabbed a double-barreled shotgun from the front seat, got out of the automobile and, although it was dark, he fired two loads of buckshot in the direction of the fleeing intruder whose identity he did not know. He and his companion left the scene, went directly to the Sheriff’s office and reported what had occurred.

The officers accompanied the defendant to the scene of the shooting where they found the dead body of Tillman Edward Orders. The body was about 40 feet from the point where the defendant’s vehicle had been parked. “J. D. Phillips told me that he hadn’t seen Tillman Orders for several years but said he knew him well. ... he said if he had known who it was he would not have shot.” The defendant’s own story fails to disclose any justification for the shooting. The defendant attempted to rely on the right to kill in his necessary self-defense. The court charged at great length on that right.

Frankly, the evidence fails to disclose any danger — real or apparent — which would justify the defendant in firing the fatal shots. The evidence shows not one, but two charges of buckshot were intentionally fired into the body of Tillman Edward Orders as he ran from the scene. Ordinarily, one must be in danger, or believe he is, and have grounds for that belief, before he may open fire on a human being. When a state of war exists, or hostilities are imminent, military and naval orders are frequently given to shoot first and investigate and ask questions after-wards.

The wisdom of this rule has its foundation in the necessity to guard against the hazards of surprise attack. In civil life a different rule exists. There must be actual or apparent necessity to shoot; otherwise, shooting at a human being is unlawful. The defendant’s motion for a directed verdict of not guilty was properly denied. The defendant took exceptions to several portions of the court’s charge. These we have examined with the care the importance of this case requires. We find them without merit.

The defendant relies for a new trial upon the admission of the evidence, over his objection, that the defendant at the time of the shooting was a married man, his companion 'was a married woman, but not his wife. The defendant contends this evidence amounted to proof of his bad character which the State had no right to offer since he neither testified nor offered evidence of his good character.

The defendant, in substance, told the officers he was out in lovers’ lane with another man’s wife, and realizing this situation exposed him to danger, in order to protect himself he carried along, and had handy a double-barreled. shotgun, loaded with buckshot. In this situation when someone opened' the door, the woman screamed, he grabbed the gun, got out of the car and fired two shots at an unknown intruder leaving the scene. The foregoing is the background, in the light of which the defendant’s conduct should be judged.

The marriage status of the parties was a revealing part of the background and properly admitted in evidence. “While he (the judge) shall reject as too remote every fact which merely furnishes a forceful analogy, ... he may admit as relevant the evidence of all those matters which shed a real, though perhaps an indirect and feeble light on the question in issue.” State v. Stone, 240 N.C. 606, 83 S.E. 2d 543; Wharton’s Criminal Evidence, 11th Ed., Vol. 1, § 224, p. 268; State v. Payne, 213 N.C. 719, 197 S.E. 573; State v. Lawrence, 196 N.C. 562, 146 S.E. 395.

Another of defendant’s exceptive assignments relates to the solicitor’s argument: “And he (defendant) says, ‘Don’t do anything to me . . . after I tore up another man’s home, was out with another man’s wife.’ ” Upon objection, the court said, “I will instruct counsel on both sides not to make an argument outside the evidence.. Mr.

McMurray’s (defendant’s counsel) argument was outside the evidence and I think that aspect of yours is, too . . . outside the evidence.” While the judge very well might have instructed the jury not to be influenced by argument outside the record by either side, the caution, we believe, had that effect. Ordinarily, this Court undertakes “to correct the errors of the judge, and not those committed by attorneys. Their errors are to be corrected by the trial judge, and when he fails in his duty it becomes a ground of exception,” which rqay be presented for review here upon proper exception and assignment. State v.

Barefoot, 241 N.C. 650, 86 S.E. 2d 424; State v. Fogleman, 204 N.C. 401, 168 S.E. 536; Lamborn v. Hollingsworth, 195 N.C. 350, 142 S.E. 19; State v. Harrison, 145 N.C. 408, 59 S.E. 867. It may be said to the credit of both the defendant and his companion that, notwithstanding their embarrassing position, nevertheless they reported this regrettable occurrence to the Sheriff’s office immediately after it happened. This conduct may have reduced the verdict from murder in the second degree to manslaughter. We have examined this record with care, and in the trial we find No error.