State v. Molko

274 S.E.2d 271 (1981)

STATE of North Carolina
v.
Robert MOLKO.

No. 8017SC664.

Court of Appeals of North Carolina.

February 3, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Everette Noland and Associate Atty. Steve F. Bryant, Raleigh, for the State.

Lloyd M. Gentry, Yanceyville and Ronald M. Price, Madison, for defendant-appellant.

WEBB, Judge.

The defendant assigns as error the failure of the court to charge on self-defense. When supported by competent evidence the court is required to charge on self-defense. State v. Deck, 285 N.C. 209, 203 S.E.2d 830 (1974). A person may use such force to repel an attack as reasonably appears necessary to him. The jury must determine the reasonableness of the defendant's belief. A person may not use deadly force to repel an attack when it does not reasonably appear that he must do so in order to protect himself from death or great bodily harm. See State v. Clay, 297 N.C. 555, 256 S.E.2d 176 (1979). In the light most favorable to the defendant, the evidence showed that Allen Hall grabbed the defendant's hair and t-shirt to drag him into a cell for the purpose of a homosexual assault. When the defendant was unable to remove Hall's hands from his body, he swung at Hall with a razor to get Hall to remove his hands. We believe that a person who is put in fear of a homosexual assault is put in fear of great bodily harm. We hold it was a jury question in the case sub judice as to whether the defendant reasonably felt he was in imminent danger of a homosexual assault and whether he used more force than was reasonably necessary to repel the assault. Since the court did not charge the jury on self-defense, we hold there must be a new trial.

The questions raised by the defendant's other assignments of error may not recur at a new trial, and we do not discuss them.

New trial.

MORRIS, C. J., and HARRY C. MARTIN, J., concur.