STATE
v.
Hillard FRANCIS.
No. 1.
Supreme Court of North Carolina.
February 24, 1960.*757 Atty. Gen. Malcolm B. Seawell, Asst. Atty. Gen. Harry W. McGalliard for the State.
Paul J. Story, Marion, for defendant.
DENNY, Justice.
The defendant excepts to and assigns as error the following portion of his Honor's charge to the jury: "Now, in determining the degree of force a person may use you will have to take into consideration all the surrounding circumstances. Generally speaking, gentlemen of the jury, a person can't fight somebody with a pistol who is making what is called a simple assault on him, that is an assault in which no weapon is being used, such as a deadly weapon or a knife or a pistol. That would render human life too cheap. It is better for a man to be the loser in a fist fight than to cut or shoot somebody. So, in determining the degree of force one may use, the law permits a person to use such force as is reasonably necessary to protect himself, and he can even go to the extent of taking human life where it is necessary to save himself from death or great bodily harm, but if he uses more force than is reasonably necessary he is answerable to the law."
*758 We think the above portion of the charge is erroneous in two respects. (1) The instruction virtually eliminates the defendant's right of self-defense since he used a pistol in connection with defending himself against a simple assault. This Court said in State v. Pennell, 231 N.C. 651, 58 S.E.2d 341, 342: "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." (Emphasis added.) (2) It is erroneous in that the court failed to charge the jury with respect to the use of such force as was necessary or apparently necessary to protect the defendant from death or great bodily harm. The plea of selfdefense rests upon necessity, real or apparent. State v. Fowler, 250 N.C. 595, 108 S.E.2d 892; State v. Goode, 249 N.C. 632, 107 S.E.2d 70; State v. Rawley, 237 N.C. 233, 74 S.E.2d 620. Or, to put it another way, one may fight in self-defense and may use more force than is actually necessary to prevent death or great bodily harm, if he believes it to be necessary and has a reasonable ground for the belief. The reasonableness of such belief or apprehension must be judged by the facts and circumstances as they appear to the party charged at the time of the assault. As pointed out by Moore, J., in State v. Fowler, supra [250 N.C. 595, 108 S.E.2d 894], "The law does not require the defendant to show that he was actually in danger of great bodily harm." Neither does it limit the force to be used in self-defense to such force as may be actually necessary to save himself from death or great bodily harm. But the jury and not the party charged is to determine the reasonableness of the belief or apprehension upon which the party charged acted. State v. Rawley, supra, and cases cited therein.
In the case of State v. Sally, 233 N.C. 225, 63 S.E.2d 151, 152, Stacy, C. J., speaking for the Court, said: "The defendant being in his own home and place of business, where he had a right to be, and acting in defense of himself and his habitation, was not required to retreat in the face of a threatened assault, regardless of its character, but was 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. State v. Roddey, 219 N.C. 532, 14 S.E.2d 526; State v. Harman, 78 N.C. 515; [State v. Pennell, 224 N.C. 622, 31 S.E.2d 857]. This, of course, would not excuse the defendant if he used excessive force in repelling the attack. State v. Jernigan, 231 N.C. 338, 56 S.E.2d 599; State v. Robinson, 188 N.C. 784, 125 S.E. 617."
It is not necessary to discuss the additional assignments of error since, in our opinion, the defendant is entitled to a new trial, and it is so ordered. These additional questions may not recur on another hearing.
New trial.