State v. Edwards, 220 S.E.2d 158 (NC Ct. App. 1975)

State: North Carolina
Date: December 17, 1975
Defendant: Edwards

State v. Edwards, 220 S.E.2d 158 (NC Ct. App. 1975)

STATE OF NORTH CAROLINA v. EDGLEE EDWARDS

No. 7525SC426

COURT OF APPEALS OF NORTH CAROLINA

28 N.C. App. 196; 220 S.E.2d 158; 1975 N.C. App. LEXIS 1711

September 16, 1975, Heard in the Court of Appeals

December 17, 1975, Filed

COUNSEL:

Attorney General Edmisten by Associate Attorney General Thomas M. Ringer, Jr. for the State.

Fate J. Beal for defendant appellant.

JUDGES: Parker, Judge.  Judges Britt and Clark concur.

OPINION BY: PARKER

OPINION

Defendant contends that the trial judge committed error in his instructions to the jury in that, although the jury was instructed as to the justification of a defendant to act in defense of self, there was no instruction as to the right of the defendant to act in defense of his home.

Defendant offered evidence that he was in his home when he was threatened by the prosecuting witness and “somebody or Mr. Brown” subsequently fired a gunshot into the house.  “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. Walker, 236 N.C. 742, 744, 73 S.E. 2d 868, 870 (1953). The right to defend one’s home from attack is a substantive right.  State v. Spruill, 225 N.C. 356, 34 S.E. 2d 142 (1945). This, of course, does not sanction the defendant in using excessive force in repelling the attack, State v. Sally, 233 N.C. 225, 63 S.E. 2d 151 (1951), but it is for the jury, under proper instructions, to be the judge of the reasonableness of defendant’s actions.

Where, as here, there is evidence that defendant acted in defense of his home, an instruction on the defendant’s right to act in self-defense without an instruction also on the defendant’s right to act in defense of home contains prejudicial error.  State v. Miller, 267 N.C. 409, 148 S.E. 2d 279 (1966).

New trial.