State v. Evans , 19 N.C. App. 731 ( 1973 )

200 S.E.2d 213 (1973) 19 N.C. App. 731

STATE of North Carolina
v.
Gene Alston EVANS.

No. 7310SC728.

Court of Appeals of North Carolina.

November 14, 1973.

Atty. Gen. Robert Morgan, by Associate Atty. C. Diederich Heidgerd, Raleigh, for the State.

Robert E. Smith, Boyce, Mitchell, Burns & Smith, Raleigh, for defendant.

BROCK, Chief Judge.

Defendant relied upon his contention and argument that he acted in self defense. Defendant specifically requested an instruction upon the principle of self-defense. The trial judge denied the requested instruction upon the principle of self-defense. lows: "I instruct you, that the principle of self-defense, the plea of self defense, under the circumstances in this case, is not available to the defendant; and that you will not consider whether the defendant acted in his own self defense, or in the defense of the house in which he lived." Defendant assigns this as error.

The right of self-defense does not necessarily depend upon real or actual danger. The right to act in self-defense may arise from apparent danger. 1 Strong, N.C. Index 2d, Assault and Battery, § 8, p. 300.

In this case, according to defendant's evidence, Watson had given defendant $45.00 for which defendant was going to secure an eight-track tape player and some tape cartridges. Defendant had spent the $45.00 on drugs and had not delivered the tape player. Defendant was told that Watson was looking for him and had a pistol. Defendant saw Watson parked across the street from defendant's house with a pistol on the seat beside him. Defendant saw Watson return to the scene with either a shotgun or rifle. Defendant was afraid of Watson and fired a rifle at Watson's vehicle to make him leave.

The defendant's appraisal of the situation is not controlling upon the question of his right to act in self-defense. The reasonableness of his apprehension is to be determined by the jury in accordance with the facts and circumstances as they appeared to the defendant at the time. 1 Strong, N.C. Index 2d, Assault and Battery, § 8, p. 300.

In our view the defendant's evidence presents the question of self-defense for jury determination. Possibly His Honor was overly impressed with doubts of the credibility of defendant's evidence. The credibility of the testimony is to be evaluated by the jury, not the court.

New trial.

HEDRICK and BALEY, JJ., concur.