State v. Sally

63 S.E.2d 151 (1951) 233 N.C. 225

STATE
v.
SALLY.

No. 726.

Supreme Court of North Carolina.

February 2, 1951.

Harry McMullan, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.

Fuller, Reade, Umstead & Fuller, Durham, for defendant.

STACY, Chief Justice.

On the defendant's plea of self-defense, which is supported by evidence, the court instructed the jury as follows:

"The right of self-defense rests upon necessity, real or apparent, and cannot be exercised if there be a reasonable opportunity to retreat and avoid the difficulty, but if the assault in which the killing is brought about be violent and the circumstances are such that the retreat would be dangerous, he is not required even to retreat." (Exception entered by later stipulation, discussed on brief, and while there is no assignment of error based on the exception, undoubtedly the stipulation was intended to cover this also.)

The instruction is correct as a general statement of the law of self-defense, but as applied to the defendant's evidence in the subject case, it would seem to be incomplete, if not inapplicable, and misleading. State v. Bryson, 200 N.C. 50, 156 S.E. 143; State v. Lee, 193 N.C. 321, 136 S.E. 877; State v. Waldroop, 193 N.C. 12, 135 S.E. 165. The defendant being in his own home and place of business where he had a right to be, and acting in defense of himself and his habitation, was not required to retreat in the face of a threatened assault, regardless of its character, but was 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. State v. Roddey, 219 N.C. 532, 14 S.E.2d 526; State v. Harman, 78 N.C. 515. This, of course, would not excuse the defendant if he used excessive force in repelling the attack. State v. Jennigan, 231 N.C. 338, 56 S.E.2d 599; State v. Robinson, 188 N.C. 784, 125 S.E. 617.

The above instruction, as here applied would seem to be less than the defendant's full measure of protection. Hence, a new trial appears necessary. Suum cuique tribuere.

New trial.