State v. Spencer

Court of Appeals of North Carolina

State v. Spencer

204 S.E.2d 552, 21 N.C. App. 445, 1974 N.C. App. LEXIS 1832

CourtCourt of Appeals of North Carolina

DecidedMay 1, 1974

DocketNo. 742SC134

StatusPublished

This text of 204 S.E.2d 552 (State v. Spencer) 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. Spencer, 204 S.E.2d 552, 21 N.C. App. 445, 1974 N.C. App. LEXIS 1832 (N.C. Ct. App. 1974).

Pincite

Opinion

BALEY, Judge.

The State contends that Harvey Ward was shot and killed by defendant’s brother, Respess Spencer, and that defendant aided and abetted in the killing. Defendant could not be convicted as an aider and abettor, however, unless the jury first found that Respess Spencer was guilty of murder or manslaughter. Defendant contends (and his evidence tends to show) that Respess Spencer could not be guilty, because when he shot Harvey Ward he did so to protect defendant, who was being attacked by Ward.

[446]*446North Carolina law recognizes that “a person may not only take life in his own defense, but he may also do so in defense of another who stands in a family relation to him.” State v. Carter, 254 N.C. 475, 478, 119 S.E. 2d 461, 464; accord, State v. Todd, 264 N.C. 524, 142 S.E. 2d 154; State v. Holloway, 7 N.C. App. 147, 171 S.E. 2d 475. But the trial judge did not instruct the jury on this issue. He charged extensively on the right of self-defense, but he made no mention of the right to use force in defense of one’s family. The failure to instruct the jury on this fundamental issue of the case constitutes prejudicial error. State v. Anderson, 222 N.C. 148, 22 S.E. 2d 271; State v. Dills, 196 N.C. 457, 146 S.E. 1; State v. Spencer, 18 N.C. App. 499, 197 S.E. 2d 232; State v. Spencer, 18 N.C. App. 323, 196 S.E. 2d 573.

Because of this error in the court’s charge, defendant is entitled to a new trial.

New trial.

Chief Judge Brock and Judge Parker concur.

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BALEY, Judge.

The State contends that Harvey Ward was shot and killed by defendant’s brother, Respess Spencer, and that defendant aided and abetted in the killing. Defendant could not be convicted as an aider and abettor, however, unless the jury first found that Respess Spencer was guilty of murder or manslaughter. Defendant contends (and his evidence tends to show) that Respess Spencer could not be guilty, because when he shot Harvey Ward he did so to protect defendant, who was being attacked by Ward.

[446]*446North Carolina law recognizes that “a person may not only take life in his own defense, but he may also do so in defense of another who stands in a family relation to him.” State v. Carter, 254 N.C. 475, 478, 119 S.E. 2d 461, 464; accord, State v. Todd, 264 N.C. 524, 142 S.E. 2d 154; State v. Holloway, 7 N.C. App. 147, 171 S.E. 2d 475. But the trial judge did not instruct the jury on this issue. He charged extensively on the right of self-defense, but he made no mention of the right to use force in defense of one’s family. The failure to instruct the jury on this fundamental issue of the case constitutes prejudicial error. State v. Anderson, 222 N.C. 148, 22 S.E. 2d 271; State v. Dills, 196 N.C. 457, 146 S.E. 1; State v. Spencer, 18 N.C. App. 499, 197 S.E. 2d 232; State v. Spencer, 18 N.C. App. 323, 196 S.E. 2d 573.

Because of this error in the court’s charge, defendant is entitled to a new trial.

New trial.

Chief Judge Brock and Judge Parker concur.

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Bluebook (online)

204 S.E.2d 552, 21 N.C. App. 445, 1974 N.C. App. LEXIS 1832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-spencer-ncctapp-1974.

Opinion

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