State v. Moses ( 1972 )

193 S.E.2d 288 (1972) 17 N.C. App. 115

STATE of North Carolina
v.
Clyburn Leroy MOSES.

No. 7220SC808.

Court of Appeals of North Carolina.

December 20, 1972.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Thomas E. Kane, for the State.

Coble, Morton & Grigg by Ernest H. Morton, Jr., Albemarle, for defendant appellant.

CAMPBELL, Judge.

Defendant contends the trial court committed prejudicial error in failing to instruct the jury that at the time the shot was fired defendant was acting in defense of Dorothy Lee, and that therefore the assault was excused. There is no merit in this contention.

Persons in a family relation, and persons in the relation of master and servant, have the reciprocal right to come to the aid and defense of the person in that relation when faced with an assault. The law does not allow this interference as an indulgence of revenge, but merely to prevent injury. The assistant's act may not be in excess of that which the law would allow the assisted party, for they are in a mutual relation one to another. State v. Johnson, 75 N.C. 174 (1876); State v. Gaddy, 166 N.C. 341, 81 S.E. 608 (1914).

Where a felonious assault is about to be committed, strangers may invoke the doctrine of self-defense of others under certain circumstances. State v. Rutherford, 8 N.C. 457 (1821); State v. Robinson, 213 N.C. 273, 195 S.E. 824 (1938); State v. Fields, 268 N.C. 456, 150 S.E.2d 852 (1966).

In an assault case the defendant has no burden to prove self-defense. Thus, assault cases differ from the rule in homicide cases. State v. Cephus, 239 N.C. 521, 80 S.E.2d 147 (1954).

In any event there must be some evidence pertaining to the doctrine before the Court is required to charge about it. Where there is no evidence from which the jury could find that the defendant reasonably believed a third person was in immediate peril of death or serious bodily harm at the hands of another, it would be improper for the Court to instruct on defendant's defense of a third person as justification for the assault. State v. Cooper, 266 N.C. 644, 146 S.E.2d 663 (1966).

In the instant case there is no evidence that Lee was committing a felonious assault on his wife, Dorothy, or that the defendant had reasonable grounds to believe that he was. There was no evidence of a special relationship between defendant and Dorothy Lee; and there being no felonious assault, there was no occasion for the application of the doctrine of self-defense of a third person.

No error.

BROCK and GRAHAM, JJ., concur.