State v. Locklear

MARTIN, Judge.

Defendant contends it was error to deny his motion for nonsuit for the reason that he acted in self-defense, using only such force as necessary to avoid death or great bodily harm.

“The burden is on defendant to prove his plea of self-defense to the satisfaction of the jury and to prove that he used no more force than was or reasonably appeared necessary under the circumstances to protect himself from death or great bodily harm.” State v. Boyd, 278 N.C. 682, 180 S.E. 2d 794 (1971).

In State v. Johnson, 261 N.C. 727, 136 S.E. 2d 84 (1964) the Court said:

“Ordinarily, when a person who is free from fault in bringing on a difficulty, is attacked in his own home or on his own premises, the law imposes on him no duty to retreat before he can justify his fighting in self defense, regardless of the character of the assault, but is 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 and secure himself from all harm. This, of course, would not excuse the defendant if he used excessive force in repelling the attack and overcoming his adversary.” (Emphasis added.)

When excessive force or unnecessary violence is used in self-defense, the killing of the adversary is manslaughter at least. State v. Cooper, 273 N.C. 51, 159 S.E. 2d 305 (1968).

It was incumbent upon defendant to satisfy the jury that he acted in self-defense and that, in doing so, he used no more force than was or reasonably appeared necessary under the circumstances. In our opinion the issue of voluntary manslaughter by reason of excessive force was a question for the jury in the present case.

' Defendant’s remaining assignment of error is without merit.

No error.

Judges Vaughn and Arnold concur.