State v. Pennell

58 S.E.2d 341 (1950) 231 N.C. 651

STATE
v.
PENNELL.

No. 291.

Supreme Court of North Carolina.

March 29, 1950.

Max C. Wilson, G. W. Klutz, Hal B. Adams, Lenoir, for defendant-appellant.

Attorney General Harry McMullan, Assistant Attorney General Ralph Moody, for the State.

WINBORNE, Justice.

While defendant presents on this appeal many assignments of error based upon exceptions, taken during the course of the trial below, to rulings of the court in respect of admission and exclusion of evidence, and motions to nonsuit, and to the charge of the court to the jury, and to failure of the court to charge in certain aspects, it is deemed necessary to treat of only four of them, Nos. 21, 23, 25 and 28 that point out error which entitles defendant to a new trial. See State v. Grant, 228 N.C. 522, 46 S.E.2d 318, and cases cited.

The first three of the above numbered assignments of error relate to exceptions to portions of the charge as given, and the last relates to exception to the failure of the court to charge on the law of self-defense invoked by the plea of defendant upon the facts of the case as he contends them to be. It is pointed out by defendant that, in the charge to which the above exceptions relate, his right to self-defense, and upon which he relies as justification of his act in shooting Clarence Russell, is made to depend upon the establishment by defendant to the satisfaction of the jury, among other legal requisites, of facts which would bring him within the doctrine of retreat at the time the fatal shot was fired.

While it is conceded that the charge as given might be applicable to a different factual situation, it is rightly contended that it is inapplicable to a case where the party assaulted is at the time in his own home. In the present case all the evidence, that of the State as well as that of defendant, shows that the homicide occurred in the home of the defendant.

Ordinarily, when a person, who is free from fault in bringing on a difficulty, is attacked in his own dwelling, or home, or place of business, or on his own premises, the law imposes upon him no duty to retreat before he can justify his fighting in self-defense,—regardless of the character of the assault. State v. Harman, 78 N.C. 515; State v. Bost, 192 N.C. 1, 133 S.E. 176; State v. Glenn, 198 N.C. 79, 150 S.E. 663; State v. Bryson, 200 N.C. 50, 156 S.E. 143; State v. Roddey, 219 N.C. 532, 14 S.E.2d 526; State v. Anderson, 222 N.C. 148, 22 S.E.2d 271; State v. Pennell, 224 N.C. 622, 31 S.E.2d 857; State v. Minton, 228 N.C. 15, 44 S.E.2d 346; State v. Grant, supra, and numerous other cases. See also State v. Spruill, 225 N.C. 356, 34 S.E.2d 142, where the cases on the subject are assembled.

The principle is expressed in State v. Harman, supra, in opinion by Reade, J., in this manner: "If prisoner stood entirely on defensive and would not have fought but for the attack, and the attack threatened death or great bodily harm, and he killed to save himself, then it was excusable homicide, although the prisoner did not run or flee out of his house. For, being in his own house, he was not obliged to flee, and had the right to repel force with force and to increase his force so as not only to resist but to overcome the assault."

Again in State v. Bryson, supra, Stacy, C. J., speaking to the subject, said [200 N.C. 50, 156 S.E. 144]: "The defendant being in his own home and acting in defense of himself, his family and his habitation * * * was not required to retreat regardless of the character of the assault", citing State v. Glenn, supra, and State v. Bost, supra.

And in State v. Pennell, supra, the principle is restated by Barnhill, J.: "Defendant was in his own place of business. If an unprovoked attack was made upon him and he only fought in self-defense, he was not required to retreat, regardless of the nature of the assault."

Applying the principle enunciated in these decisions, the doctrine of retreat has no place in the present case, and it is immaterial whether the assault be felonious or nonfelonious.

But as the decisions of this Court uniformly hold, this principle does not relieve the defendant of the burden of satisfying the jury as to the essential elements of the principle of law as to the right of self-defense available to one assaulted in his own home.

We do not intimate any opinion on the facts. What they are is a matter for the jury.

Other assignments of error relate to matters which may not recur upon another trial.

The error pointed out is prejudicial to the defendant, and on account of it, he is entitled to a

New trial.