State v. Lee

VAUGHN, Judge.

Defendant first contends that the trial court erred in denying his motion to strike the portion of the bill of indictment charging an intent to kill because the warrant at the probable cause hearing did not include that allegation. He argues that once the State has elected to proceed upon a specific charge and probable cause is found on that charge, the State cannot thereafter, with respect to the same facts, proceed on a bill of indictment charging a more serious offense. The argument reflects the diligence of defendant’s able appointed counsel but not the present state of the law. A preliminary hearing is not essential to the finding of an indictment. The Grand Jury may indict without regard to the charges presented or determined at a probable cause hearing in the District Court.

Defendant argues that the judge erred in his instructions on self-defense in that he failed to instruct on self-defense when one is assaulted on his own premises. We conclude, however, that the judge properly declared and explained the law concerning self-defense as it related to the evidence in the case then being tried. The evidence tends to show that the victim was in an alley adjoining defendant’s house when the argument started. Defendant left and went into his house and got a shotgun and two shells. He pointed the loaded shotgun at Rayner while Rayner was in the alley and told him to leave. Defendant shot Rayner in the leg and, as Rayner was attempting to run away, defendant fired into the air. The instructions on the ordinary rules of self-defense were appropriate. We concede, however, that it appears that the distinctions between the rules governing defense against “an attack on the house or its inmates,” State v. Gray, 162 N.C. 608, 612, 77 S.E. 833 (1913) (emphasis added), and ordinary self-defense are now somewhat elusive. See State v. McCombs, 297 N.C. 151, 253 S.E. 2d 906 (1979).

We find no prejudicial error in defendant’s trial.

No error.

Judges Clark and Carlton concur.