158 S.E. 89 | N.C. | 1931
Civil action for damages sustained by reason of an alleged assault and battery, tried in the Forsyth County Court, which resulted in a verdict and judgment for the plaintiff.
It seems that the plaintiff went into the office of the defendant to take up a $100 check, which the defendant had been holding for some time, and upon which, plaintiff contended, two payments had previously been made, one cash payment of $25 and the other a payment of $50 by means of a chattel mortgage, leaving a balance due on the check of $25. But the defendant, after getting the check from his safe and placing it on the table, stated that he had not accepted the chattel mortgage as payment on the check, and had returned the mortgage to the plaintiff by mail. The plaintiff had $25, mostly in nickels and dimes, which he counted out and placed on the table. He then picked up the check and started away with it, when the defendant grabbed the plaintiff, hit him with his fist (knocked him down according to plaintiff's testimony; scuffled with him according to defendant's version), took the check from him and put it back in his safe. This suit is to recover damages for the alleged assault and battery thus committed.
On appeal to the Superior Court, as was the defendant's right under the law (Brock v. Ellis,
"The court instructs you, gentlemen of the jury, that a person, under the law, is allowed to use force in order to protect his own property, provided by using that force he does not commit a breach of the peace, but a person is not allowed to use sufficient force to protect his property as will amount to a breach of the peace. If it is necessary for a person to use force sufficient to constitute a breach of the peace in the protection of his property, then he must refrain from using that force and resort to the courts."
From this ruling of the Superior Court the plaintiff appeals, contending that no reversible error was committed in the County Court.
As we understand the record, the Superior Court, in the exercise of its appellate jurisdiction, took the view, and accordingly *614
held, that the above instruction deprived the defendant of the right to use such force as was necessary, but only such as was necessary, to protect his property, and we cannot say there was error in the ruling. Kirkpatrick v.Crutchfield,
One in possession of property, either as owner, or as agent or servant of the owner, has the right to defend and protect it against aggression, and in so doing he may use such force as is reasonably necessary to accomplish this end, subject to the qualification that, in the absence of a felonious use of force on the part of the aggressor, human life must not be endangered or great bodily harm inflicted. People v. Dowd,
In S. v. Yancey,
The law of this jurisdiction was summarized by Walker, J., in S. v.Scott,
"The right to protect person or property by the use of such force as may be necessary is subject to the qualification that human life must not be endangered or great bodily harm threatened except, perhaps, in urgent cases. The person whose right is assailed must first use moderate means before resorting to extreme measures. Clark's Cr. Law (2 ed.), 241, 242; S.v. Crook,
The question of excessive force, of course, is for the jury. S. v.Goode, supra.
Affirmed. *616