STATE of North Carolina
v.
Weatherspoon McLAURIN.
No. 7914SC1162.
Court of Appeals of North Carolina.
May 20, 1980.*407 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Francis W. Crawley, Raleigh, for the State.
Loflin, Loflin, Galloway & Acker by Thomas F. Loflin, III and James R. Acker, Durham, for defendant-appellant.
HILL, Judge.
Defendant first contends that the trial court erred in charging the jury that an intentional killing by means of a deadly weapon raises the inference that such a killing was unlawful and done with malice, even when self-defense is at issue. We find no error.
Defendant contends unlawfulness and malice could not be presumed from a finding of an intentional killing by means of a deadly weapon until after the jury had found the absence of self-defense on the part of the defendant beyond a reasonable doubt. Appellant relies upon State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975), reversed on other grounds 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), which interpreted Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The Court in Hankerson, supra 288 N.C. at p. 651, 220 S.E.2d at p. 589, stated that:
[T]he State must bear the burden throughout the trial of proving each element of the crime charged including, where applicable, malice and unlawfulness beyond a reasonable doubt, . . . If, after the mandatory presumptions [of malice and unlawfulness] are raised, there is no evidence of a heat of passion killing on sudden provocation and no evidence that the killing was in self-defense, Mullaney permits and our law requires the jury to be instructed that defendant must be convicted of murder in the second degree. . . . If there is evidence in the case of all the elements of self-defense, the mandatory presumption of unlawfulness disappears but the logical inferences from the facts proved may be weighed against this evidence. If upon considering all the evidence, including the inferences and evidence of self-defense, the jury is left with a reasonable doubt as to the existence of unlawfulness it must find the defendant not guilty. (Emphasis added.)
*408 The trial court herein charged upon the permissible inference of unlawfulness and malice as follows:
If the State proves beyond a reasonable doubt, or it is admitted that this defendant intentionally killed Lucille Surles with a deadly weapon, or intentionally inflicted a wound upon Lucille Surles with a deadly weapon which proximately caused her death, you may infer first that the killing was unlawful; and second, that it was done with malice, but you are not compelled to do so. You may consider the inferences along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice. If you infer that the killing was unlawful and was done with malice, the defendant would be guilty of second degree murder. (Emphasis added.)
The above portion of the trial court's charge is virtually identical to the language recommended by our Supreme Court in State v. Harris, 297 N.C. 24, 28, 252 S.E.2d 781, 784 (1979), a case in which murder in the second degree was charged and where self-defense was at issue. Our Court recommended the trial courts charge that:
If the State proves beyond a reasonable doubt, or it is admitted, that the defendant intentionally killed the victim with a deadly weapon or intentionally inflicted a wound upon the victim with a deadly weapon that proximately caused his death, you may infer first, that the killing was unlawful, and second that it was done with malice, but you are not compelled to do so. You may consider the inferences along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice. (Emphasis added.)
The language suggested in State v. Harris, supra, and the portion of the charge to which appellant excepted, allow the jury to consider all facts and circumstances, including evidence of self-defense, in determining whether the killing was unlawful. When the issue of self-defense is raised, the State continues to have the burden of proving each element of the crime of murder in the second degree beyond a reasonable doubt. Simultaneously, the additional burden is added of proving malice based on inferences rather than presumptions. The language in the court's charge clearly follows the principles set forth in Hankerson, supra.
When evidence of self-defense is presented in a murder in the second degree case, the mandatory presumption of unlawfulness disappears but the logical inferences from the facts proved may be weighed against this evidence. Hankerson, supra. The Court by its charge allowed the jury to consider the evidence of self-defense in addition to the permissible inference of unlawfulness in determining whether the killing was unlawful and did not deprive the defendant of due process of law.
Defendant contends the trial judge should have submitted an instruction on defense of habitat or domicile. It is well settled in North Carolina that the defense of habitation or domicile is limited to those cases where a defendant is attempting to prevent a forcible entry into his home. State v. McCombs, 297 N.C. 151, 253 S.E.2d 906 (1979). In the case sub judice there is no evidence the defendant was acting to prevent a forcible entry into his home. The deceased and her daughter were already in defendant's home when first observed by the defendant. The trial judge correctly refused to charge on defense of habitation or domicile and proceeded to charge on self-defense.
Defendant attacks the judge's charge saying that the judge erred in failing to charge there was no duty on the part of the defendant to retreat within his habitat or domicile. We agree.
In the present case, not only was the defendant on his own premises, but there is evidence that the deceased carried a pistol; that she reached into her pocket as if going for a gun; that the deceased told the defendant that she would give him "six little bullets"; that the defendant thought the deceased intended to follow through with her threat.
*409 A person is not obligated to retreat when he is assaulted in his dwelling house or within the curtilage thereof, whether the assailant be an intruder or another lawful occupant of the premises. State v. Browning, 28 N.C.App. 376, 221 S.E.2d 375 (1976). Under the circumstances, it was error for the judge to fail to charge upon the defendant's right to stand his ground without retreating.
We do not consider the remaining assignments of error since we must award the defendant a
New Trial.
ROBERT M. MARTIN and WEBB, JJ., concur.