State v. Ellis , 241 N.C. 702 ( 1955 )

86 S.E.2d 272 (1955) 241 N.C. 702

STATE
v.
J. Wall ELLIS.

No. 219.

Supreme Court of North Carolina.

March 23, 1955.

Charles Hughes, Robert Lacey, Newland, G. D. Bailey and W. E. Anglin, Burnsville, for defendant-appellant.

Atty. Gen. Harry McMullan and Asst. Atty. Gen. Ralph M. Moody, for the State.

JOHNSON, Justice.

The trial court instructed the jury in part as follows:

"Going further with the law of this case, gentlemen of the jury, the Court instructs you that upon this occasion that Mr. Ellis, the defendant, was in the discharge of his duties as a State Wildlife Protector, and under the statute is permitted to enter upon privately owned land for the purpose of checking fishing licenses and things of that sort, and that he was not, therefore, upon this occasion a trespasser upon the lands of Mr. Ralph Young, the owner of it, and on the other hand, gentlemen of the jury, inasmuch as the incident we are investigating did not involve the discharge of his official duties, the fact that he is an officer would not enter into that part of it; that is, gentlemen of the jury, under the circumstances he had no more right to shoot, but did have the same right to shoot as a private citizen, but he is not cast in the role of trespasser, but he had a right to be where he is; so that, insofar as that phase of the case is concerned, gentlemen of the jury, it would be the same as if the incident had taken place out upon the highway where two men had met up with each other." (Italics added.)

The defendant under Exception No. 63 assigns as error the portion of the charge appearing in italics. The assignment appears to be well taken. The inadvertence of the court in telling the jury "the incident we are investigating did not involve the discharge of his (defendant's) official duties," was inexact, contradictory of the instruction just given, and calculated to prejudice the defendant in his right of self-defense, as was the further instruction that "the fact that he is an officer would not enter into that part of it." The evidence discloses the defendant was engaged in the performance of his official duties, i. e., on his way to check a fisherman for license and, if he had none, to give him a citation. These acts he was empowered by law to perform. G. S. §§ 113-91(d), 113-141, 113-152, 113-157. And being in the performance of his official duties, the doctrine of retreat as an element of self-defense, State v. Bryant, 213 N.C. 752, 197 S.E. 530, had no application to the defendant's situation. This is so for the reason that a peace officer, or one clothed with the powers of such officer, who is assaulted or obstructed or interfered with while in the lawful performance of his duties is not required, or ordinarily permitted, to retreat and thus leave the would-be lawbreaker to work his will and frustrate the orderly enforcement of the law. State v. Garrett, 60 N.C. 144; State v. Dunning, 177 N.C. 559, 98 S.E. 530, 3 A.L.R. 1166; 26 Am.Jur., Homicide, section 154. On the contrary, it is his duty when assaulted to stand his ground, carry through on the performance of his duties, and meet force with force so long as he acts in good faith and uses no more force than reasonably appears to him to be necessary to effectuate the due performance of his official duties and save himself from death or great bodily harm. State v. Dunning, supra; 40 C.J.S., Homicide, § 137. Also, as bearing on the question of excessive force, a peace officer acting in self-defense is presumed to have acted in good faith, State v. Pugh, 101 N.C. 737, 7 S.E. 757, and the jury should be so instructed. State v. Dunning, supra; State v. McNinch, 90 N.C. 695. Accordingly, the defendant was in no sense, as the court inadvertently told the jury, in the same situation "as if the incident had taken place out upon the highway where two men had met up with each other."

It would seem that the challenged instructions must have weighed too heavily against the defendant. We conclude he is entitled to another trial. It is so ordered. This being so, we refrain from reviewing the remaining assignments of error.

New trial.

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