State v. Brooks
245 S.E.2d 564
N.C. Ct. App.
1978
Check Treatment
MITCHELL, Judge.

The defendant’s sole assignment of error is directed to the trial court’s refusal to instruct the jury on the law of self-defense. In support of this assignment, the defendant argues that his evidence tended to show self-defense as a matter of law. We do not agree.

The defendant refers us, inter alia, to State v. Hickman, 21 N.C. App. 421, 204 S.E. 2d 718 (1974) and State v. Evans, 19 N.C. App. 731, 200 S.E. 2d 213 (1973). He contends that the holdings in those cases are controlling here and, based upon the evidence presented, required the trial court to give an instruction on self-defense. We find that the fact situations presented by each of the cases relied upon by the defendant distinguishable from the present case. In both Evans and Hickman there was some evidence tending to show that the prosecuting witness or victim clearly made a first overt act of aggression toward the defendant before the defendant attacked. Here, however, the defendant was armed with a deadly weapon and voluntarily moved nearly the entire length of the dormitory-type cell in order to place himself along the path the victim must take in leaving the showers. We cannot say upon these facts that the mere act of the victim in placing his hand in a pocket containing a knife, when he emerged from the shower and saw the defendant waiting for him, was sufficient to require the trial court to give an instruction upon the doctrine of self-defense.

The evidence, when taken in the light most favorable to the defendant, indicates that he was not without fault and voluntarily and aggressively took himself into a situation in which he well *209 knew that he or the other man would probably use deadly force. The doctrine of self-defense is not available unless the defendant is without fault and did not voluntarily enter into the fight or abandons the fight and withdraws from it giving notice to his adversary that he has so withdrawn. State v. Watkins, 283 N.C. 504, 511, 196 S.E. 2d 750, 755 (1973).

The evidence did not require an instruction on self-defense upon a theory of either real or apparent necessity. The defendant was required to show that there was some evidence indicating he acted in self-defense before the trial court would have been required to instruct the jury on that defense. State v. Williams, 288 N.C. 680, 220 S.E. 2d 558 (1975); State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), rev’d on other grounds, 432 U.S. 233, 53 L.Ed. 2d 306, 97 S.Ct. 2339 (1977). Rules such as ours, which do not require the prosecution to negate self-defense or the trial court to charge thereon until the defendant has produced “some evidence” that he in fact acted in self-defense, have been approved by the Supreme Court of the United States. Mullaney v. Wilbur, 421 U.S. 684, 701-702, 44 L.Ed. 2d 508, 521, 95 S.Ct. 1881, 1891, nn. 28 & 30 (1975). Here, the defendant failed to present “some evidence” indicating that he acted in self-defense, and he was not entitled to a jury instruction on that defense.

As the defendant totally failed to produce any evidence of one or more of the factors which would have entitled him to invoke the doctrine of self-defense, the trial court quite correctly declined to instruct the jury with regard to the doctrine. For the trial court to have ruled otherwise would have constituted error. State v. Watkins, 283 N.C. 504, 509, 196 S.E. 2d 750, 754 (1973).

The defendant received a fair trial free from prejudicial error in every respect, and we find

No error.

Judges Parker and Hedrick concur.