State v. Boswell

Court of Appeals of North Carolina

State v. Boswell

210 S.E.2d 129, 24 N.C. App. 94, 1974 N.C. App. LEXIS 1936

CourtCourt of Appeals of North Carolina

DecidedDecember 4, 1974

DocketNo. 747SC612

StatusPublished

Cited by1 cases

This text of 210 S.E.2d 129 (State v. Boswell) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Boswell, 210 S.E.2d 129, 24 N.C. App. 94, 1974 N.C. App. LEXIS 1936 (N.C. Ct. App. 1974).

Pincite

Opinion

MARTIN, Judge.

Defendant contends that the following charge given to the jury on self-defense amounts to prejudicial error:

“If the defendant was not the aggressor and he reasonably believed that a murderous assault was being made upon [96]*96him, if he was in his own home, he was not required to retreat but could stand his ground and use whatever force he reasonably believed to be necessary to save himself from death or great bodily harm. It is for you, the Jury, to determine the reasonableness of the defendant’s belief from the circumstances as they appeared to him at the time.”

In the present case, the evidence tends to show defendant was in his own home at the time of the killing and Luther Mason was heading for defendant’s rifle after threatening defendant. Mason was found on the floor of defendant’s home just inside the front door. Also, defendant and his wife testified that they were afraid of Mason. “Ordinarily, when a person who is free from fault in bringing on a difficulty, is attacked in his own home or on his own premises, the law imposes on him no duty to retreat before he can justify his fighting in self defense, regardless of the character of the assault, but is 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 and secure himself from all harm. This, of course, would not excuse the defendant if he used excessive force in repelling the attack and overcoming his adversary. [Citations.]” State v. Johnson, 261 N.C. 727, 136 S.E. 2d 84 (1964) (emphasis added).

Because the jury in the instant case could have logically deduced from the quoted portion of the charge and the charge as a whole that defendant was under a duty to retreat in his own home if the assault upon him was not murderous, we hold defendant deserves a new trial due to error in the charge.

Discussion of defendant’s other assignments of error is unnecessary since the asserted errors to which they relate may not recur at the next trial.

New trial.

Chief Judge Brock and Judge Hedrick concur.

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MARTIN, Judge.

Defendant contends that the following charge given to the jury on self-defense amounts to prejudicial error:

“If the defendant was not the aggressor and he reasonably believed that a murderous assault was being made upon [96]*96him, if he was in his own home, he was not required to retreat but could stand his ground and use whatever force he reasonably believed to be necessary to save himself from death or great bodily harm. It is for you, the Jury, to determine the reasonableness of the defendant’s belief from the circumstances as they appeared to him at the time.”

In the present case, the evidence tends to show defendant was in his own home at the time of the killing and Luther Mason was heading for defendant’s rifle after threatening defendant. Mason was found on the floor of defendant’s home just inside the front door. Also, defendant and his wife testified that they were afraid of Mason. “Ordinarily, when a person who is free from fault in bringing on a difficulty, is attacked in his own home or on his own premises, the law imposes on him no duty to retreat before he can justify his fighting in self defense, regardless of the character of the assault, but is 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 and secure himself from all harm. This, of course, would not excuse the defendant if he used excessive force in repelling the attack and overcoming his adversary. [Citations.]” State v. Johnson, 261 N.C. 727, 136 S.E. 2d 84 (1964) (emphasis added).

Because the jury in the instant case could have logically deduced from the quoted portion of the charge and the charge as a whole that defendant was under a duty to retreat in his own home if the assault upon him was not murderous, we hold defendant deserves a new trial due to error in the charge.

Discussion of defendant’s other assignments of error is unnecessary since the asserted errors to which they relate may not recur at the next trial.

New trial.

Chief Judge Brock and Judge Hedrick concur.

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Bluebook (online)

210 S.E.2d 129, 24 N.C. App. 94, 1974 N.C. App. LEXIS 1936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-boswell-ncctapp-1974.

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