dissenting.
While I hesitate to “adopt a rule of law which more easily justifies the taking of human life,” Commonwealth v. Johnston, 438 Pa. 485, 493, 263 A. 2d 376, 381 (1970) (Pomeroy, J., dissenting), I dissent from the majority’s resolution of defendant’s self-defense claim. This is indeed a close case, but I believe the majority has usurped the jury’s function. It finds that “there is no evidence that the defendant was or reasonably believed himself to be in danger of death or great bodily harm,” ante, page 3, and concludes that “no construction of the evidence in this case supports [a self-defense] charge,” ante, page 2. It may be wise, as a policy matter, to enact gun control legislation to reduce the number of “they shot first and I shot back to stop them from shooting” claims. And while it may be expedient, as a practical matter, for a defendant to run and take cover when "fired upon” from a house, I do not believe it to be the law in this State that before a defendant can “return fire,” he has either (1) to flee or take cover; (2) to determine correctly who in a house is shooting at him; or (3) to specifically testify that the shots fired at him put him in fear of death or great bodily harm.1 My belief is based on an historical analysis of the doctrine of self defense and the retreat rule.
*74The high regard for the value of human life qualified the right, at common law, to defend oneself. Originally,' self-defense was not a defense to homicide; it could only be used in hopes of obtaining a pardon. 2 F. Pollock & F. Maitland, The History of the English Law, 479 (1895). Later, in England, an assaulted person was required to retreat (to the wall, fence, or ditch) if any avenue of escape was open, before resorting to deadly force. “[T]he colonies, however, while embracing the doctrine of self-defense, did not unanimously accept [this] retreat rule.” Note, Criminal Law—A Further Erosion of the Retreat Rule in North Carolina, 12 Wake Forest Law Rev. 1093, 1095 (1976). Indeed, the retreat rule was, more often than not, rejected by Southern and Western states in which a strong code of personal honor developed. As stated by Professor Beale, “[i]n the West and South ... it is abhorrent to the courts to require one who is assailed to seek dishonor in flight.” Beale, Retreat from a Murderous Assault, 16 Harv. L. Rev. 567, 577 (1903).
As early as 1839, North Carolina required a defendant who was feloniously assaulted to retreat to the wall before killing in self-defense. State v. Hill, 20 N.C. 629, 34 A.D. 396 (1839). By 1876, North Carolina joined the majority of Southern states and held that one attacked with felonious intent was under no obligation to retreat. State v. Dixon, 75 N.C. 275 (1876); 12 Wake Forest Law Rev. at 1096. Our courts have created other exceptions to the retreat rule. If one is in his own home, he, in effect, has his back to the wall and is under no duty to retreat from an assault be it felonious or non-felonious. State v. Johnson, 261 N.C. 727, 136 S.E. 2d 84 (1964). This exception was later extended to include both the curtilage of the home as well as one’s place of business. See State v. Pearson, 288 N.C. 34, 215 S.E. 2d 598 (1975).2 In 1976, this Court went a step further and held that no duty to retreat from the home exists even if the assailant is another lawful occupant of the premises. State v. Browning, 28 N.C. App. 376, 221 S.E. 2d 375 (1976).
*75While some question the soundness of our law,3 our law is, nevertheless, unmistakably clear. The common law doctrine that the right of self defense does not arise until the person assaulted has retreated to the wall has been supplanted in this State by the following doctrine: If a person is assaulted in a place where he has a right to be, he may stand his ground, meet force with force, and if need be, kill his assailant. With this doctrine in mind, let us turn to the particulars of the case sub judice.
At page 2 of its opinion, the majority states part of the applicable law relating to self-defense instructions: “The trial judge is required to charge on self-defense, even without a special request, when there is some construction of the evidence from which could be drawn a reasonable inference that the defendant assaulted the victim in self defense.” [Citations omitted.] Our courts, however, have said more. In resolving whether a self-defense instruction should be given, the facts are to be interpreted in the light most favorable to the defendant. State v. Blackmon, 38 N.C. App. 620, 248 S.E. 2d 456 (1978), cert. denied, 296 N.C. 412, 251 S.E. 2d 471 (1979). Further, the credibility of trial testimony is to be evaluated by the jury, not the court. State v. Evans, 19 N.C. App. 731, 200 S.E. 2d 213 (1973); State v. May, 8 N.C. App. 423, 174 S.E. 2d 633 (1970). Moreover, the reasonableness of a defendant’s belief that he had to use self-defense is to be determined by the jury. As stated in State v. Marsh, 293 N.C. 353, 354, 237 S.E. 2d 745, 747 (1977) (emphasis added):
The right to act in self-defense rests upon necessity, real or apparent, and a person may use such force as is necessary or apparently necessary to save himself from death or great bodily harm in the lawful exercise of his right of self-defense. A person may exercise such force if he believes it to be necessary and has reasonable grounds for such belief. The reasonableness of his belief is to be determined by the jury from the facts and circumstances as they appeared to the accused at the time. [Citation omitted.]
*76Significantly, the defendant was, and had been, living at a house diagonally across the street from the prosecution’s witness’ house at the time of the shooting; only one house was between the two houses. The State introduced defendant’s post-arrest statement that he fired a shotgun at the prosecution’s witness’ residence only after gunshots were fired from the house at him. (The defendant, himself, testified that he heard a pistol shot in addition to the shotgun blasts before he returned the fire.) Relevant portions of the defendant’s post-arrest statement are set out below:
I, Jimmy Musselwhite, fired a shotgun at the residence of Carey Mae Tilley and Joanne Tilley after someone at that residence had fired a shotgun, or what appeared to be pistol shots, in the direction of Richard Bass’ residence, located at 155 “E” Avenue. I am not sure who fired the shots in that direction, but “I do know that the shots came from the residence of Carey Mae Tilley. I had been having trouble with Joanne Tilley for the last few days. On Saturday, July 12, we had a big argument, and I took her car and drove it around the block and parked it in the yard of Richard Bass’ house. I told her she could come get the car, but she called the police and told them I had stolen her car. I had been threatened and even shot at by some of the members of Joanne Tilley’s family. They have harassed me and tried to make me do something that would send me back to prison. / did shoot at her house Sunday night, hut it was only after they had shot at us in the yard of Richard Bass’ residence. [Emphasis added.]
I am as concerned as the majority that the evidence indicates that defendant “opened fire on a house.” The jury is free, however, to infer that defendant was not simply shooting at the structure itself, but rather was returning the fire in self-defense in an effort to stop the Tilleys from shooting at him. Our law seems to give defendant the right to repel a felonious assault in that manner.4
*77If the shooting occurred as the prosecuting witness suggests, there was no element of self-defense. This, however, the defendant denies. He contends that, while sitting under a tree at the place where he was then living, he was fired upon by someone from the prosecuting witness’ house. As was said in State v. Miller, 223 N.C. 184, 187, 25 S.E. 2d 623, 625 (1943), a case involving both self defense and defense of the home:
There is nothing in [his] testimony to indicate that [he] used any language calculated or intended to bring on the fight or that [he] otherwise provoked the difficulty. [He was] on [his] own premises. [He was] under no obligation to retreat. [Citations omitted.] If [he was] assaulted in the manner outlined by [him he] has a right to stand [his] ground and return blow for blow or shot for shot in [his] own necessary self-defense.
It is true that the defendant’s post-arrest statement was different from his in-court testimony. That fact does not vitiate his self-defense claim, however. Again, the credibility of trial testimony is to be evaluated by the jury, not the court. See State v. Evans and State v. Ferrell, 300 N.C. 157, 265 S.E. 2d 210 (1980). In Ferrell, the State introduced at least three inconsistent statements of the defendant. One of Ferrell’s statements suggested that his roommate, the victim, struck the first blow and also had a box-cutter in his hand prior to his death. In the face of three inconsistent statements made by him, Ferrell testified that he was in his room when his roommate was killed by some third person who escaped. The Court in Ferrell not only held that there was evidence from which a jury could find that Ferrell acted in the heat of passion upon sudden provocation so as to reduce the crime to voluntary manslaughter, but also held that the evidence was sufficient to permit the jury reasonably to infer that Ferrell acted in self-defense.
So, in view of the evidence (1) that defendant had been threatened by members of the Tilley family, (2) that defendant was on property where he lived when fired upon and had no duty to retreat, and (3) that shots were fired first at defendant from the Tilley residence before defendant returned the fire, the jury could have found, but were not required to have found, that the defendant was exercising his lawful right of self-defense. The trial *78judge’s failure to instruct on self-defense constituted prejudicial error. In my view, defendant is entitled to a
New trial.
. Compare Brown v. United States, 256 U.S. 335, 65 L.Ed. 961, 41 S.Ct. 501 (1921). When one is feloniously assaulted, he is not required to “pause to consider whether a reasonable man might not think it possible to fly with safety, or to disable his assailant rather than to kill him.” Id. at 343, 65 L.Ed. at 963, 41 S.Ct. at 502.
. The Pearson court said: “These retreat rules ordinarily have no application, however, when a person ... is attacked in his own dwelling, home, place of business, or on his own premises.” 288 N.C. at 40, 215 S.E. 2d at 603.
. “North Carolina, by continuing to erode the duty to retreat, fails to encourage resort to legal or other means to settle disputes.” Note, Criminal Law—A Further Erosion of the Retreat Rule in North Carolina, 12 Wake Forest Law Rev. 1093 at 1100 (1976).
. Whether a defendant who shoots into a home is culpably negligent is another question. It, too, is ordinarily a question for the jury. State v. Church, 43 N.C. App. 365, --- 258 S.E. 2d 812 (1979). Additionally, some courts suggest that the reasonableness of retreating or standing one’s ground are circumstances which the jury may consider in deciding whether the right of self-defense exists. State v. Haakenson, 213 N.W. 2d 394 (N. D. 1973).