State v. Molko

Court of Appeals of North Carolina

State v. Molko

274 S.E.2d 271, 50 N.C. App. 551, 1981 N.C. App. LEXIS 2144

CourtCourt of Appeals of North Carolina

DecidedFebruary 3, 1981

Docket8017SC664

StatusPublished

Cited by1 cases

This text of 274 S.E.2d 271 (State v. Molko) 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. Molko, 274 S.E.2d 271, 50 N.C. App. 551, 1981 N.C. App. LEXIS 2144 (N.C. Ct. App. 1981).

Pincite

Opinion

WEBB, Judge.

The defendant assigns as error the failure of the court to charge on self-defense. When supported by competent evidence the court is required to charge on self-defense. State v. Deck, 285 N.C. 209, 203 S.E. 2d 830 (1974). A person may use such force to repel an attack as reasonably appears necessary to him. The jury must determine the reasonableness of the defendant’s belief. A person may not use deadly force to repel an attack when it does not reasonably appear that he must do so in order to protect himself from death or great bodily harm. See State v. Clay, 297 N.C. 555, 256 S.E. 2d 176 (1979). In the light most favorable to the defendant, the evidence showed that Allen Hall grabbed the defendant’s hair and t-shirt to drag him into a cell for the purpose of a homosexual assault. When the defendant was unable to remove Hall’s hands from his body, he swung at Hal3 with a razor to get Hall to remove his hands. We believe that a person who is put in fear of a homosexual assault is put in fear of great bodily harm. We hold it was a jury question in the case sub judice as to whether the defendant reasonably felt he was in imminent danger of a homosexual assault and whether he used more force than was reasonably necessary to repel the assault. Since the court did not charge the jury on self-defense, we hold there must be a new trial.

The questions raised by the defendant’s other assignments of error may not recur at a new trial, and we do not discuss them.

*553 New trial.

Chief Judge MORRIS and Judge MARTIN (Harry C.) concur.

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WEBB, Judge.

The defendant assigns as error the failure of the court to charge on self-defense. When supported by competent evidence the court is required to charge on self-defense. State v. Deck, 285 N.C. 209, 203 S.E. 2d 830 (1974). A person may use such force to repel an attack as reasonably appears necessary to him. The jury must determine the reasonableness of the defendant’s belief. A person may not use deadly force to repel an attack when it does not reasonably appear that he must do so in order to protect himself from death or great bodily harm. See State v. Clay, 297 N.C. 555, 256 S.E. 2d 176 (1979). In the light most favorable to the defendant, the evidence showed that Allen Hall grabbed the defendant’s hair and t-shirt to drag him into a cell for the purpose of a homosexual assault. When the defendant was unable to remove Hall’s hands from his body, he swung at Hal3 with a razor to get Hall to remove his hands. We believe that a person who is put in fear of a homosexual assault is put in fear of great bodily harm. We hold it was a jury question in the case sub judice as to whether the defendant reasonably felt he was in imminent danger of a homosexual assault and whether he used more force than was reasonably necessary to repel the assault. Since the court did not charge the jury on self-defense, we hold there must be a new trial.

The questions raised by the defendant’s other assignments of error may not recur at a new trial, and we do not discuss them.

*553 New trial.

Chief Judge MORRIS and Judge MARTIN (Harry C.) concur.

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Bluebook (online)

274 S.E.2d 271, 50 N.C. App. 551, 1981 N.C. App. LEXIS 2144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-molko-ncctapp-1981.

Opinion

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