dissenting.
On the factual aspects of Officer Workman’s entry into defendant’s residence, the evidence for the State and for the defendant is clearly conflicting. The State’s evidence tended to show that defendant was hostile to Officer Hastings, indicated a clear disinclination to submit to arrest, that Hastings radioed for help in defendant’s presence, that Officer Workman responded to the call for help, that Workman knocked on the door when he arrived, that Hastings then announced to defendant Workman’s purpose by explaining to Workman that defendant had refused to submit to arrest, that Workman attempted to persuade defendant to submit, and that only after defendant’s refusal to submit did Workman lay hands upon defendant.
On the other hand, defendant’s evidence tended to show that he had cooperated with Officer Hastings, that his conversation with Hastings was peaceful, that he had indicated to Hastings that he was preparing to submit to arrest, that Workman arrived and entered without knocking or announcing his purpose or identifying himself, and that upon entry, Workman immediately manifested hostility to defendant and then physically assaulted him.
*198Such a conflict in the evidence clearly raised the issue of the legality of Workman’s entry and subsequent conduct. Such evidence required the trial court to submit this factual controversy to the jury and to instruct the jury as to defendant’s rights should they find Workman’s entry to be illegal. State v. Sparrow, 276 N.C. 499, 173 S.E. 2d 897 (1970). See also State v. Anderson, 40 N.C. App. 318, 253 S.E. 2d 48 (1979). In my opinion, the failure of the trial judge to so instruct the jury entitles defendant to a new trial. Sparrow, supra.