¶1DEVIN, J., dissenting.
¶2BARNHILL, J., concurs in dissent. The defendants, and others not in the appeal, were each separately indicted for the murder of Andrew Hoyle. Since the evidence related to the same transaction the indictments were consolidated and heard together. The two appealing defendants were convicted — Grant Riddle of murder in the second degree, and Emory Riddle of manslaughter.
¶3There are over 40 assignments of error in the voluminous record, and, since a new trial must be granted, we follow the rule to omit discussion of those matters not likely to recur on another hearing.
¶4The occurrence resulting in the death of Hoyle took place near his house in the mountains of Madison County. There was an armed fight *252 in which Hoyle and a son, on the one part, and numerous persons on the other, including the defendants, took part. As the result of the fight Andrew Hoyle fell fatally wounded, and died shortly thereafter, and numbers of the other group were wounded by a shotgun carried by the younger Hoyle.
¶5The evidence is contradictory as to who was the aggressor and as to which of the opposite group fired the fatal shot. There is evidence, however, tending to show that defendants acted in concert, and it is, therefore, not material which inflicted the lethal wound. There is sufficient evidence, notwithstanding its conflict, to sustain a conviction and the demurrer each defendant made to the evidence was properly overruled.
¶6However, the defendants presented evidence tending to show that they acted in self-defense — each of them — entitling them to a proper instruction to the jury on that phase of the case; and the appellants complain of prejudicial omission in that regard.
¶7The defendants introduced evidence tending to show that the deceased had the reputation of being a man of violent character, and the trial judge permitted the State to introduce rebutting evidence. Before the formal charge to the jury and in the course of the trial, the court made the following observation:
¶8 "Gentlemen of the jury, yesterday the defendants in this case offered evidence tending to show that the 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 the general reputation of the deceased is not competent or material in the case, but as the Court has stated, where the defendant interposed his self-defense, then it is proper to show that the deceased was a man of dangerous and violent character."
¶9If this may be considered in the light of an instruction to the jury, which because of its allocation in the proceeding we doubt, it appears to be the only correlation attempted between the admitted testimony that deceased was a man of violent character and disposition and the plea of self-defense. The State contends that it satisfies G.S., 1-180, as a sufficient substantive instruction and that if the defendants desired anything further by way of subordinate elaboration they should have asked for it.
¶10We think, however, that while the jury, in its process of thinking, might have made the correct application of the principle underlying the evidence, this did not relieve the court from more directly and clearly instructing them and explaining to them the bearing the reputation of the deceased as a violent man might have on defendants' reasonable apprehension of death or great bodily harm through the attack to which their evidence pointed. *253
¶11For this inadvertent error in an able charge, there must be a new trial. It is so ordered.
¶12New trial.