State v. Davis , 61 N.C. App. 735 ( 1983 )

WELLS, Judge.

In her brief, defendant contends that she is entitled to a new trial because the trial judge denied her request for an instruction to the jury that a person who is attacked in his own home is under no duty to retreat and may use reasonable force in self-defense.

The law of self-defense takes on an additional dimension if the accused is threatened or assaulted by the victim on the accused’s own premises. Our Supreme Court, in State v. Johnson, 261 N.C. 727, 136 S.E. 2d 84 (1964), stated the rule 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. (Cites omitted.)

See also State v. McCombs, 297 N.C. 151, 253 S.E. 2d 906 (1979); State v. Walker, 236 N.C. 742, 73 S.E. 2d 868 (1953); State v. Church, 43 N.C. App. 365, 258 S.E. 2d 812 (1979).

In State v. Poplin, 238 N.C. 728, 78 S.E. 2d 777 (1953), the evidence favorable to the defendant showed that the defendant and the deceased got into an altercation in the defendant’s kitchen; that the defendant ordered the deceased from the house; that when the deceased did not leave, the defendant went to his bedroom and got a pistol and shot and killed the deceased who continued to approach him with an upraised chair. The Supreme Court held that the defendant was entitled to a new trial because the trial judge had failed to charge upon the defendant’s right to defend himself in his own home, to defend his home from attack and to eject trespassers from his home, as substantive features of the case arising upon the evidence.

In State v. McLaurin, 46 N.C. App. 746, 266 S.E. 2d 406 (1980), the State’s evidence showed that the defendant lured the deceased to his house, announced his intentions to kill her and shot her in cold blood. The defendant testified that he knew the victim to carry a gun; that the victim told him that she was going to give him “six little bullets” and reached into her coat pocket; and that he shot her twice, believing that she was going to kill him. This Court awarded the defendant a new trial because the trial judge failed to charge that there was no duty on the part of the defendant to retreat within his own home.

For other cases on a defendant’s right to have a jury instructed on his rights while in his home to stand his ground and repel assaults, see 6 Strong’s N.C. Index 3d, Homicide § 28.4.

In the present case, defendant’s only defense was her theory of self-defense. The trial judge erred in failing to give defendant’s requested instruction on her right to stand her ground. For the trial judge’s failure to instruct thoroughly on the law raised by the evidence, defendant must have a new trial. See G.S. 15A-1232.

We do not address defendant’s other assignments of error as such questions are not likely to present themselves on retrial.

New trial.

Judges HILL and JOHNSON concur.