State v. Goodson , 235 N.C. 177 ( 1952 )

69 S.E.2d 242 (1952) 235 N.C. 177

STATE
v.
GOODSON et al.

No. 74.

Supreme Court of North Carolina.

February 27, 1952.

Don C. Young, Asheville, for defendants-appellants.

Atty. Gen. Harry McMullan, Asst. Atty. Gen. Ralph Moody, for the State.

WINBORNE, Justice.

The exceptions chiefly relied upon by appellants are directed to failure of the judge, in charging the jury upon the trial below, to "declare and explain the law arising on the evidence given in the case", in accordance with requirements of G.S. § 1-180, as amended by 1949 Session Laws, Chap. 107, in respect to right of each of them to avail herself of the right to fight in defense of herself, her family and her habitation.

A careful consideration of the evidence shown in the record leads this Court to conclude that these exceptions, assigned as error, are well taken. See State v. Spruill, 225 N.C. 356, 34 S.E.2d 142, and cases there cited.

In the Spruill case it is said that the right of a person to defend his home from attack is a substantive right, as is the right to evict trespassers from his home. Also it is there stated that when in the trial of a criminal action charging an assault, or other kindred crime, there is evidence from which it may be inferred that the force used by a defendant was in defending his home from attack by another, he is entitled to have evidence considered in the light of applicable principles of law; and, that in such event, and to that end, it becomes the duty of the court to declare and explain the law arising thereon, G.S. § 1-180, formerly C. S. 564, and the failure of the court to so instruct the jury on such substantive feature is prejudicial error,—even though there be no special prayer for instruction to that effect—citing cases. See also State v. Ardrey, 232 N.C. 721, 62 S.E.2d 53.

What is said in the Spruill case, supra, is applicable to the case in hand.

Moreover, "it is the law of this jurisdiction", as stated by Stacy, C. J., in Freeman v. General Motors Acceptance Corp., 205 N.C. 257, 171 S.E. 63, "that although an entry on lands may be effected peaceably and even with permission of the owner, yet if, after going upon the premises of another, the defendant uses violent and abusive language and commits such acts as are reasonably calculated to intimidate or lead to a breach of the peace, he would be liable for trespass civiliter as well as criminaliter (State v. Stinnett, 203 N.C. 829, 167 S.E. 63), for ``It may be, he was not at first a trespasser, but he became such as soon as he put himself in forcible opposition to the prosecutor'. State v. Wilson, 94 N.C. 839", citing cases.

The Court then defines forcible trespass. See also Whitfield v. Bodenhammer, 61 N. C. 362; May v. Western Union Telegraph Co., 157 N.C. 416, 72 S.E. 1059, 37 L.R.A., N.S., 912; Anthony v. Teachers' Protective Union, 206 N.C. 7, 173 S.E. 6.

Other assignments of error need not now be considered, as the matters to which they relate may not recur on another trial.

For error pointed out, let there be a

New trial.