State v. Strater

Supreme Court of North Carolina

State v. Strater

158 S.E.2d 60, 272 N.C. 276, 1967 N.C. LEXIS 1019

DecidedDecember 13, 1967

StatusPublished

This text of 158 S.E.2d 60 (State v. Strater) is published on Counsel Stack Legal Research, covering Supreme Court 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. Strater, 158 S.E.2d 60, 272 N.C. 276, 1967 N.C. LEXIS 1019 (N.C. 1967).

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Opinion

Pee Cubiam.

The defendant assigns as error the Court’s refusal to direct a verdict of not guilty on the ground the evidence was insufficient to justify a conviction. The State’s evidence made out a case of felonious assault. The defendant’s evidence made out a case of self defense.

In the charge, the Court instructed the jury: “The laws of self-defense vary depending on whether a person is at his home, trying to protect his family and what not, but here we have the defendant in a place of business . . . but when you are other than in your own home when you are being assaulted you must retreat as far as you can do in reference to your own safety.”

The evidence disclosed the defendant was an employee of Chavis Inn, where the dance was being conducted. When the disturbance began on the platform near the door, the defendant went to the scene. According to the State’s evidence, he used the bat without any provocation. However, according to the defendant’s evidence, he was assisting in preserving order and did not wield the bat until Walker had fired one shot and was attempting to fire again. At that instant the defendant used the bat. The defendant worked at the dance hall, but that was not his home. Nevertheless, if he was without fault in bringing on the difficulty, when he was assaulted [278]*278with the pistol, he had a right to stand his ground and repel force with force. He was within the law, so long as he used no more force than was reasonably necessary or which appeared to him to be reasonably necessary to repel the assault. State v. Fowler, 250 N.C. 595, 108 S.E. 2d 892.

The charge as quoted above denied the defendant the right to defend himself without first retreating. The Attorney General concedes, and we agree, the charge was erroneous because it did not state the proper rule to be applied if the jury should find the defendant did not bring on the difficulty, was assaulted with a deadly weapon, and did not use excessive force in resisting the assault. For the errors in the charge, the defendant is entitled to a

New trial.

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Pee Cubiam.

The defendant assigns as error the Court’s refusal to direct a verdict of not guilty on the ground the evidence was insufficient to justify a conviction. The State’s evidence made out a case of felonious assault. The defendant’s evidence made out a case of self defense.

In the charge, the Court instructed the jury: “The laws of self-defense vary depending on whether a person is at his home, trying to protect his family and what not, but here we have the defendant in a place of business . . . but when you are other than in your own home when you are being assaulted you must retreat as far as you can do in reference to your own safety.”

The evidence disclosed the defendant was an employee of Chavis Inn, where the dance was being conducted. When the disturbance began on the platform near the door, the defendant went to the scene. According to the State’s evidence, he used the bat without any provocation. However, according to the defendant’s evidence, he was assisting in preserving order and did not wield the bat until Walker had fired one shot and was attempting to fire again. At that instant the defendant used the bat. The defendant worked at the dance hall, but that was not his home. Nevertheless, if he was without fault in bringing on the difficulty, when he was assaulted [278]*278with the pistol, he had a right to stand his ground and repel force with force. He was within the law, so long as he used no more force than was reasonably necessary or which appeared to him to be reasonably necessary to repel the assault. State v. Fowler, 250 N.C. 595, 108 S.E. 2d 892.

The charge as quoted above denied the defendant the right to defend himself without first retreating. The Attorney General concedes, and we agree, the charge was erroneous because it did not state the proper rule to be applied if the jury should find the defendant did not bring on the difficulty, was assaulted with a deadly weapon, and did not use excessive force in resisting the assault. For the errors in the charge, the defendant is entitled to a

New trial.

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Bluebook (online)

158 S.E.2d 60, 272 N.C. 276, 1967 N.C. LEXIS 1019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-strater-nc-1967.

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