State v. Benge ( 1967 )

158 S.E.2d 70 (1967) 272 N.C. 261

STATE
v.
Lonnie BENGE.

No. 332.

Supreme Court of North Carolina.

December 13, 1967.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. M. R. Rich, Jr., for the State.

Ted G. West, Lenoir, for defendant.

PER CURIAM.

Defendant contends the court erred in denying his motion for nonsuit at the close of all the evidence.

Manslaughter is the unlawful killing of a human being without malice and without premeditation or deliberation. State v. Street, 241 N.C. 689, 86 S.E.2d 277.

Defendant cites the case of State v. Johnson, 261 N.C. 727, 136 S.E.2d 84, to support his position. This case correctly states the law as follows:

"Ordinarily, when a person who is free from fault in bringing on a difficulty, is attacked in his own home or on his own premises, the law imposes on him no duty to retreat before he can justify his fighting in self defense, regardless of the character of the assault, but is entitled to stand his ground, to repel force with force, and to increase his force, so as not only to resist, but also to overcome the assault and secure himself from all harm. This, of course, would not excuse the defendant if he used excessive force in repelling the attack and overcoming his adversary. State v. Francis, 252 N.C. 57, 112 S.E.2d 756; State v. Frizzelle, 243 N.C. 49, 89 S.E.2d 725". (Emphasis ours.)

In the instant case defendant admits shooting deceased with a pistol and further admits that he never saw a weapon in deceased's hand. There is other evidence from which it can be inferred that defendant's repeated firing was unnecessary to his own self-defense, and that defendant followed deceased outside his habitation and shot him at least three times as he lay on the ground.

In order to make good the plea of self-defense, the force used must be exerted in good faith to prevent the threatened injury and must not be excessive or disproportionate to the force it is intended to repel, but the question of excessive force is to be determined by the jury. State v. Cox, 153 N.C. 638, 69 S.E. 419. Considering the evidence in the light most favorable to the State, we hold that the trial judge properly overruled defendant's motion for nonsuit at the close of all the evidence.

Patently, the State's evidence is of sufficient probative force to sustain the verdict, and the assignment of error to the court's refusal to set the verdict aside for lack of evidence is overruled.

No error.