State v. Chaney

177 S.E.2d 309, 9 N.C. App. 731, 1970 N.C. App. LEXIS 1460

• Court: Court of Appeals of North Carolina
• Decided: November 18, 1970
• Docket: 7017SC476
• Status: Published

Opinion

BROCK, Judge.

Defendant assigns as error that the trial judge failed to Instruct the jury upon defendant’s right to repel a nonfelonious assault; but confined defendant’s right of self-defense to repelling an assault which would likely cause death or great bodily harm. Defendant cites State v. Fletcher, 268 N.C. 140, 150 S.E. 2d 54; State v. Anderson, 230 N.C. 54, 51 S.E. 2d 895; and State v. Barnette, 8 N.C. App. 198, 174 S.E. 2d 82 (certiorari denied 277 N.C. 113) in support of this assignment of error.

The evidence that defendant acted in defense of an assault upon him by prosecuting witness with a knife could constitute evidence that defendant acted to repel a felonious assault, or that he acted to repel a nonfelonious assault.

“In the absence of an intent to kill, a person may fight in Ms own self-defense to protect himself from bodily injury or offensive physical contact, even though not put in actual or apparent danger of death or great bodily harm.” 1 Strong, N.C. Index 2d, Assault and Battery, § 8, p. 301. The jury found defendant guilty of an assault with a deadly weapon, thereby establishing that he acted without intent to kill. Therefore, it was prejudicial error that the trial court failed to instruct the jury upon defendant’s right to repel a nonfelonious assault. State v. Fletcher, supra; State v. Anderson, supra.

When the evidence requires a charge of self-defense, it would be the better practice for the trial court to instruct upon defendant’s right to repel a nonfelonious assault in all cases where the evidence justifies submitting the charges against defendant to the jury for a possible finding of guilty of assault without intent to kill.

For error in the charge as indicated above there must be a

New trial.

Judges Morris and Graham concur.