State v. Miller

148 S.E.2d 279 (1966)

267 N.C. 409

STATE of North Carolina v. Wilson MILLER.

No. 745.

Supreme Court of North Carolina.

May 25, 1966.

*281 T. W. Bruton, Atty. Gen., and George A. Goodwyn, Asst. Atty. Gen., for the State.

Blackwell M. Brogden and Norman E. Williams, Durham, for defendant appellant.

SHARP, Justice.

Defendant contends that the State's own evidence rebutted the presumption of unlawfulness and malice which arises from an intentional killing with a deadly weapon, and that he is entitled to an acquittal by judgment of nonsuit. We agree with the trial judge, however, that the State's evidence required its submission to the jury. Deceased was unarmed. After he had torn the screen from the outer door, defendant neither shut the panel door, nor gave him any warning of his purpose to shoot if deceased persisted in his efforts to enter the house. Instead, defendant procured his pistol, said to Browning, "I told you not to tear my screen out," and fired the fatal shot. Defendant could not justify or excuse slaying the man at his door for an act already done; reasonable apprehension of future injury is an essential prerequisite to the right to take life in defense of one's habitation. It was for the jury to say whether defendant shot to punish deceased for damaging his screen, or to prevent an intruder, whom he had reason to believe intended to commit a felony or to inflict personal injury upon him or some other member of his household, from forcibly entering his dwelling. If it were the latter, there was the further question whether defendant used force excessive under all the circumstances. State v. Baker, 222 N.C. 428, 23 S.E.2d 340; State v. Reynolds, 212 N.C. 37, 192 S.E. 871.

When a trespasser enters upon a man's premises, makes an assault upon his dwelling, and attempts to force an entrance into his house in a manner such as would lead a reasonably prudent man to believe that the intruder intends to commit a felony or to inflict some serious personal injury upon the inmates, a lawful occupant of the dwelling may legally prevent the entry, even by the taking of the life of the intruder. Under those circumstances, "the law does not require such householder to flee or to remain in his house until his assailant is upon him, but he may open his door and shoot his assailant, if such course is apparently necessary for the protection of himself or family. * * * But the jury must be the judge of the reasonableness of defendant's apprehension." State v. Gray, 162 N.C. 608, 610-611, 77 S.E. 833, 834, 45 L.R.A.,N.S., 71, 73. Accord, State v. Johnson, 261 N.C. 727, 136 S.E.2d 84; State v. Bryson, 200 N.C. 50, 156 S.E. 143. See Annots., Homicide or Assault in Defense of Habitation or Property, 25 A.L.R. 508 (1923); 32 A.L.R. 1541 (1924); 34 A.L.R. 1488 (1925). A householder will not, however, be excused if he employs excessive force in repelling the attack, whether it be upon his person or upon his habitation. State v. Roddey, 219 N.C. 532, 14 S.E.2d 526.

*282 The rules governing the right to defend one's habitation against forcible entry by an intruder are substantially the same as those governing his right to defend himself. 26 Am.Jur., Homicide § 167 (1940). (Compare the rules governing the right of an owner to kill in defense of his property. Curlee v. Scales, 200 N.C. 612, 158 S.E. 89; State v. Scott, 142 N.C. 582, 55 S.E. 69, 9 L.R.A.,N.S., 1148; State v. Crook, 133 N.C. 672, 45 S.E. 564; State v. Taylor, 82 N.C. 554.)

In his charge to the jury, the judge fully explained the law of self-defense insofar as it related to the right of defendant to defend his person, but defendant assigns as error the court's failure to declare the law relating to his right to defend his habitation from invasion by an intruder. This assignment must be sustained. The Court, in State v. Spruill, 225 N.C. 356, 357-358, 34 S.E.2d 142, 143, spoke to this precise point:

"Defendant complains, and rightly so, that while the law arising upon the evidence given in the case in so far as it relates to his plea of self-defense was declared and explained in the charge to the jury, as it should have been, the court failed to declare and explain the law arising upon the evidence given in the case as it relates to defendant's legal right to defend his home from attack, and to evict trespassers therefrom. "The right of a person to defend his home from attack is a substantive right, as is the right to evict trespassers from his home. * * * "Hence, when in the trial of a criminal action charging an assault, or other kindred crime, there is evidence from which it may be inferred as in this case that the force used by defendant was in defending his home from attack by another, he is entitled to have evidence considered in the light of applicable principles of law. * * * This is true even though there be no special prayer for instruction to that effect."

The defendant is entitled to have another jury consider his case.

New trial.

MOORE, J., not sitting.