State v. Kelly , 24 N.C. App. 670 ( 1975 )

211 S.E.2d 854 (1975) 24 N.C. App. 670

STATE of North Carolina
v.
Darrell Kenny KELLY.

No. 7419SC937.

Court of Appeals of North Carolina.

February 19, 1975.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Robert G. Webb, Raleigh, for the State.

Davis, Ford & Weinhold by Donald L. Weinhold, Jr., and Robert M. Davis, Salisbury, for defendant appellant.

CLARK, Judge.

Though defendant presents several assignments of error, the only one warranting express consideration is the exception to that portion of the charge relating to self-defense.

It is apparent that the charge of the trial court is from "Pattern Jury Instructions" (N.C.P.I.—Crim. 206.10), in which the right of self-defense is made available to the defendant upon the jury finding that a murderous assault, or assault with felonious intent, was made upon him.

It may be conceded that the charge as given would be applicable to a different, and probably usual, factual situation; but in this case the evidence for the defendant tended to show that at the time of the assault, defendant was in his own home; that he was assaulted by the victim; that the victim refused to leave after being requested to do so several times; and that he shot when the victim started to grab him. Under these circumstances, the trial court was required under G.S. § 1-180 to declare and explain the law arising from the evidence as it related to the rights of the defendant to evict a trespasser from his home and to defend himself and his home from attack.

One who remains in a home after being directed to leave is guilty of a wrongful entry and becomes a trespasser, even though the original entry was peaceful and authorized, and a householder may use such force as is reasonably necessary to eject him. G.S. § 14-126; State v. Clyburn, 247 N.C. 455, 101 S.E.2d 295 (1958); State v. Chaney, 9 N.C.App. 731, 177 S.E.2d 309 (1970); and 40 Am.Jur.2d, Homicide, § 179 (1968).

A person in his own home and in defense of himself and his habitat is not required to retreat in the face of a threatened assault, regardless of its character, but is entitled to stand his ground, to repel force with force, so as not only to resist, but also to overcome the assault. State v. Spruill, 225 N.C. 356, 34 S.E.2d 142 (1945); State v. Walker, 236 N.C. 742, 73 S.E.2d 868 (1953); State v. Miller, 267 N.C. 409, 148 S.E.2d 279 (1966). Of course, this would not excuse the defendant if he used excessive force in repelling the assault. State v. Jernigan, 231 N.C. 338, 56 S.E.2d 599 (1949); State v. Pettiford, 239 N.C. 301, 79 S.E.2d 517 (1954).

For error noted, defendant is entitled to a

New Trial.

BROCK, C. J., and BRITT, J., concur.