STATE of North Carolina
v.
Earl Lee WARD.
No. 7529SC191.
Court of Appeals of North Carolina.
June 4, 1975.*396 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. T. Buie Costen, Raleigh, for the State.
Story, Hunter & Goldsmith, P. A., by C. Frank Goldsmith, Jr., Marion, for defendant appellant.
HEDRICK, Judge.
Based on exceptions duly noted in the record, the defendant contends that the trial court failed to declare and explain the law arising on the evidence with respect to a substantial feature of his claim of self-defense. The defendant argues that under the evidence of this case it was the duty of the court to instruct the jury that the defendant was under no duty to retreat but could stand his ground and kill Morrow if necessary to save his life or protect his person from great bodily harm.
It is well-settled that where a man is without fault and a murderous assault is made upon himan assault with intent to killhe is not required to retreat, but may stand his ground and kill his assailant if necessary to save his own life or protect his person from great bodily harm. State v. Washington, 234 N.C. 531, 67 S.E.2d 498 (1951); State v. Bryant, 213 N.C. 752, 197 S.E. 530 (1938). It is likewise well-settled that this necessity may be either real or apparent. State v. Washington, supra; State v. Terrell, 212 N.C. 145, 193 S.E. 161 (1937). The determinative question is whether upon the facts and circumstances as they appeared to the defendant at the time a man of ordinary firmness would regard the necessity as real, and this question is generally to be decided by the jury. State v. Washington, supra; State v. Ellerbe, 223 N.C. 770, 28 S.E.2d 519 (1944); State v. Marshall, 208 N.C. 127, 179 S.E. 427 (1935).
In the present case, the defendant's evidence tended to show that during the evening the deceased had been carrying a .32 caliber pistol in his back pocket; that on several occasions the deceased had pulled the gun out of his pocket, pointed it at the defendant and had threatened to kill him, and that on one occasion the deceased had hit the defendant over the head with the pistol. The evidence also tended to show that the defendant followed the deceased into the bedroom after being told by the deceased that he could sleep there, that when he entered the bedroom the deceased said, "I will blow your brains out" and reached into his back pocket, and that the defendant thereupon shot the deceased.
Yet, nowhere in his charge did the judge instruct the jury that the defendant, if he had a reasonable belief that he was about to be killed or suffer great bodily injury, had no duty to retreat but could stand and shoot his assailant in self-defense. Since this was a substantial feature of defendant's defense, it was error for the court not to instruct the jury on this aspect of the case, even in the absence of a special request therefor. State v. Miller, 267 N.C. 409, 148 S.E.2d 279 (1966); State v. Washington, supra; State v. Godwin, 211 N.C. 419, 190 S.E. 761 (1937); State v. Thornton, 211 N.C. 413, 190 S.E. 758 (1937).
Additionally, the defendant contends the court erred to his prejudice when it instructed the jury with respect to self-defense that the burden was on the defendant to satisfy it that he was not the aggressor and that if the jury believed that he was the aggressor or used excessive force in repelling an assault, though it found he was otherwise acting in self-defense, he would be guilty of manslaughter. We agree. There is no evidence in the record that the defendant was the aggressor. Indeed, the *397 defendant's evidence tends to show that the deceased was the aggressor up to the instant the defendant fired the fatal shot. Since the jury found the defendant guilty of manslaughter, it seems likely, under the circumstances in this case, that the jury believed the defendant acted in self-defense but used excessive force or that he, the defendant, was the aggressor. We cannot assume that the jury was more discriminating than the judge and ignored the erroneous instruction while applying the correct one. Thus, the error in giving the instruction complained of was prejudicial.
Defendant has other assignments of error which we need not discuss since they are not likely to occur upon retrial.
For errors in the charge, there must be a
New trial.
BROCK, C. J., and MORRIS, J., concur.