Counsel for tbe defendant argues bere tbat tbe instructions given to tbe jury, as quoted above, do not fairly present to tbe jury tbe full right of self-defense wbicb might be her due on certain phases of tbe evidence, particularly with regard to-the necessity of retreating from an assault made upon her in her own bouse.
However much tbe evidence contra may preponderate, any phase of tbe evidence supporting tbe plea of self-defense demands tbat tbe instruction addressed thereto must apply tbe law to'tbe facts wbicb such evidence tends to show. S. v. Anderson, post, 148. There is, of course, no general rule or formula of expression wbicb will apply tbe law of self-defense to every case. In tbe instant case, defendant complains tbat tbe jury might be confused with conflicting instructions and be unable to decide whether, under tbe law, it was tbe duty of tbe defendant to retreat from tbe assault made upon her before killing in self-defense or whether she might stand her ground, under tbe evidence wbicb she herself advances tbat she was tbe victim of an unprovoked assault in her own home.
In tbe first place, it is pointed out tbat there was no necessity for presenting an inapplicable rule, designated by tbe State as a general rule^ — one wbicb would require her to retreat under such conditions; and if tbe second instruction could be, for argument’s sake, conceded to be correct, tbe jury would be still left in doubt as to wbicb instruction they should follow.
We think, however, tbat there is an inadvertent statement, of a more serious nature, in tbe instruction wbicb tbe State regards as curative, wbicb would deny it tbat office. In this instruction tbe court would deprive tbe plea of self-defense of any effectiveness, unless proved to tbe jury beyond a reasonable doubt. In order to secure an acquittal on a plea of self-defense, it is only necessary tbat tbe accused establish tbe facts upon wbicb it is predicated to tbe satisfaction of tbe jury. S. v. Beachum, 220 N. C., 531, 17 S. E. (2d), 674; S. v. Fuller, 114 N. C., 885, 19 S. E., 797.
In principle this case seems to be substantially on all fours with S. v. Boddey, 219 N. C., 532, 14 S. E. (2d), 526, from wbicb we quote:
“Defendant appropriately contends tbat while tbe doctrine of retreat enunciated in these instructions may be correctly applied to different factual situations, it does not apply to a controversy in a man’s home, as in tbe present case. Hence, be contends tbat, even though tbe court did further instruct on tbe right of a man to protect bis home and family, tbe instructions to wbicb exception is taken are calculated to mislead tbe jury to bis prejudice. With this contention we agree.”
For tbe reasons stated, tbe defendant is granted a
New trial.