State v. Chaney , 9 N.C. App. 731 ( 1970 )

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177 S.E.2d 309 (1970) 9 N.C. App. 731
STATE of North Carolina
v.
Steve CHANEY.
No. 7017SC476.
Court of Appeals of North Carolina.
November 18, 1970.
Atty. Gen. Robert Morgan, by Asst. Atty. Gen. William W. Melvin, for the State.

Gwyn, Gwyn & Morgan, by Melzer A. Morgan, Jr., Reidsville, for defendant.

BROCK, Judge.

Defendant assigns as error that the trial judge failed to instruct the jury upon defendant's right to repel a nonfelonious assault; but confined defendant's right of *310 self-defense to repelling an assault which would likely cause death or great bodily harm. Defendant cites State v. Fletcher, 268 N.C. 140, 150 S.E.2d 54; State v. Anderson, 230 N.C. 54, 51 S.E.2d 895; and State v. Barnette, 8 N.C.App. 198, 174 S.E. 2d 82 (certiorari denied 277 N.C. 113) in support of this assignment of error.

The evidence that defendant acted in defense of an assault upon him by prosecuting witness with a knife could constitute evidence that defendant acted to repel a felonious assault, or that he acted to repel a nonfelonious assault.

"In the absence of an intent to kill, a person may fight in his own self-defense to protect himself from bodily injury or offensive physical contact, even though not put in actual or apparent danger of death or great bodily harm." 1 Strong, N.C. Index 2d, Assault and Battery, § 8, p. 301. The jury found defendant guilty of an assault with a deadly weapon, thereby establishing that he acted without intent to kill. Therefore, it was prejudicial error that the trial court failed to instruct the jury upon defendant's right to repel a nonfelonious assault. State v. Fletcher, supra; State v. Anderson, supra.

When the evidence requires a charge on self-defense, it would be the better practice for the trial court to instruct upon defendant's right to repel a nonfelonious assault in all cases where the evidence justifies submitting the charges against defendant to the jury for a possible finding of guilty of assault without intent to kill.

For error in the charge as indicated above there must be a

New trial.

MORRIS and GRAHAM, JJ., concur.