State v. Frizzelle

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89 S.E.2d 725 (1955)

243 N.C. 49


No. 294.

Supreme Court of North Carolina.

November 2, 1955.

*726 Wm. Rodman, Jr., Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.

Jones, Reed & Griffin, Kinston, for defendant.

DENNY, Justice.

The defendant excepts to and assigns as error the following excerpt from the charge: "Now, gentlemen, not only have our courts held that ordinarily one is not required to repel a simple assault with a deadly weapon but it has also held that where one is without fault and an attempted assault is being made upon one, such one ought to retreat if there is an opportunity to retreat with safety but where the assault is felonious, that is, where it is done with the intent to kill or at least to inflict serious bodily injuries, and the person assaulted is without fault, the person that is assaulted is not required to retreat."

The above instruction was proper, if at the time the defendant was assaulted she was not on her own premises. State v. Bryant, 213 N.C. 752, 197 S.E. 530; State v. Johnson, 184 N.C. 637, 113 S.E. 617; State v. Dixon, 75 N.C. 275. But, in light of the evidence tending to show that the defendant was on her own premises when the deceased assaulted her, she assigns as error the failure of the court to explain the law arising on such evidence with respect to her right to stand her ground and defend herself, on her own premises, regardless of the character of the assault. We think this exception is well taken and must be sustained.

The State contends, however, there is no evidence tending to show that the nonfelonious assault made by the deceased on the defendant occurred on her premises. We do not concur in this view. We think the evidence in this respect was sufficient to require its submission to the jury for its determination as to whether the assault occurred on the defendant's premises. The State further contends that, if it should be conceded that the defendant was on her premises when the nonfelonious assault occurred, the law in this jurisdiction does not give a person the right, in the case of a nonfelonious assault, to stand his ground and return blow for blow "when such person is standing on the edge of his yard by the roadside."

It is true that in most of our cases involving the right of self-defense, where the defendant had been assaulted on his own premises, such assault occurred in the home or place of business of the defendant. However, one's own premises, in this connection, will not be limited to his dwelling house only, but in any event will extend to attacks within the curtilage of the home. And the curtilage of the home will ordinarily be construed to include at least the yard around the dwelling house as well as the area occupied by barns, cribs, and other outbuildings. State v. Walker, 236 N.C. 742, 73 S.E.2d 868; State v. Miller, 223 N.C. 184, 25 S.E.2d 623; State v. Roddey, 219 N.C. 532, 14 S.E.2d 526; Beard v. United States, 158 U.S. 550, 15 S. Ct. 962, 39 L. Ed. 1086; 26 Am.Jur., Homicide, section 156, page 264.

*727 In State v. Walker, supra [236 N.C. 742, 73 S.E.2d 870], Winborne, J., speaking for the court, said: "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", citing numerous authorities.

In the present case, if the jury should find that the defendant was assaulted on her own premises, the doctrine of retreat would have no application to her and it would be immaterial whether the assault on her was felonious or nonfelonious. State v. Walker, supra.

We think the defendant is entitled to a new trial and it is so ordered.

New trial.

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