State v. Walker

73 S.E.2d 868 (1953)

236 N.C. 742

STATE v. WALKER.

No. 223.

Supreme Court of North Carolina.

January 6, 1953.

*869 Atty. Gen. Harry McMullan, Asst. Atty. Gen. Ralph Moody, and Charles G. Powell, Jr., Member of the Staff, Raleigh, for the State.

Trivette, Holshouser & Mitchell and W. H. McElwee, Jr., North Wilkesboro, for defendant appellant.

WINBORNE, Justice.

While defendant presents many assignments of error on this appeal, only those based (1) upon exceptions to denial of his motion for judgment as of nonsuit as to the charges on which the court submitted the case to the jury, and (2) upon a group of exceptions to various portions of the charge pertaining to defendant's plea of self defense, need express consideration.

As to the first, it is sufficient to say that the evidence, without reciting it, taken in the light most favorable to the State is sufficient to take the case to the jury.

But, as to the second, it appears that the court made the right of self defense available to defendant upon the jury finding that assault was made upon him with felonious intent. These exceptions are well taken.

While it may be conceded that the charge as given in this respect might be applicable to a different factual situation, it is rightly contended that it is inapplicable to a case where the party assaulted is at the time on his own premises. The decisions of this Court uniformly so hold. *870 Ordinarily, when a person, who is free from fault in bringing on a difficulty, is attacked in his own dwelling, or home, or place of business, or on his own premises, the law imposes upon him no duty to retreat before he can justify his fighting in self defense,regardless of the character of the assault. State v. Harman, 78 N.C. 515; State v. Bost, 192 N.C. 1, 133 S.E. 176; State v. Glenn, 198 N.C. 79, 150 S.E. 663; State v. Bryson, 200 N.C. 50, 156 S.E. 143; State v. Roddey, 219 N.C. 532, 14 S.E.2d 526; State v. Anderson, 222 N.C. 148, 22 S.E.2d 271; State v. Pennell, 224 N.C. 622, 31 S.E.2d 857; State v. Minton, 228 N.C. 15, 44 S.E.2d 346; State v. Grant, 228 N.C. 522, 46 S.E.2d 318; State v. Pennell, 231 N.C. 651, 58 S.E.2d 341, and numerous other cases. See also State v. Spruill, 225 N.C. 356, 34 S.E.2d 142, where the cases on the subject are assembled.

The principle is expressed in State v. Harman, supra, in opinion by Reade, J., in this manner: "If prisoner stood entirely on defensive and would not have fought but for the attack, and the attack threatened death or great bodily harm, and he killed to save himself, then it was excusable homicide, although the prisoner did not run or flee out of his house. For being in his own house, he was not obliged to flee, and had the right to repel force with force and to increase his force so as not only to resist but to overcome the assault."

Again in State v. Bryson, supra [200 N.C. 50, 156 S.E. 144], Stacy, C. J., speaking to the subject, said: "The defendant being in his own home and acting in defense of himself, his family and his habitation * * * was not required to retreat regardless of the character of the assault", citing State v. Glenn, supra, and State v. Bost, supra.

And in State v. Pennell, supra, the principle is restated by Barnhill, J., "Defendant was in his own place of business. If an unprovoked attack was made upon him and he only fought in self-defense, he was not required to retreat, regardless of the nature of the assault."

Applying the principle enunciated in these decisions, the doctrine of retreat has no place in the present case, and it is immaterial whether the assault be felonious or nonfelonious.

But as the decisions of this Court uniformly hold, this principle does not relieve the defendant of the burden of satisfying the jury as to the essential elements of the principle of law as to the right of self defense available to one assaulted on his own premises.

We do not intimate any opinion on the facts. What they are is a matter for the jury.

Other assignments of error relate to matters which may not recur upon another trial.

The error pointed out is prejudicial to the defendant, and on account of it, he is entitled to a

New trial.

PARKER, J., took no part in the consideration or decision of this case.