State v. . Fain
50 S.E.2d 904
N.C.
1948
Check Treatment
Dexny, J.

The defendant excepts and assigns as error the failure of the trial judge to declare and explain the law of self-defense and to apply it to the evidence in the case.

Since we have no way of ascertaining whether the jury returned the verdict of guilty of an assault with a deadly "weapon against the defendant because he used excessive force in executing a duly issued process of the court, or whether it found him guilty because he ivas acting without *646 being clothed with such process, we think there was error in the charge of the court.

The court gave the general rule of law applicable to the service of process, and then gave the respective contentions of the State and the defendant. But nowhere in the charge did the court explain the law applicable to the evidence upon which the defendant’s contentions were based, should the jury find the facts from the evidence to be as contended by him. G.S. 1-180; Lewis v. Watson, ante, 20, 47 S. E. (2) 484. Neither was the jury instructed as to the legal rights of an officer when confronted with a sudden peril while in the discharge of his official duties.

It is said in 6 C. J. S., sec. 13 (d), p. 615 : “An officer, where he acts in self-defense, may, if necessary, kill an offender who endangers his life or safety, while attempting an arrest. If the officer is assaulted, he is not bound to fly to the wall, but if necessary to save his own life, or to guard his person from great bodily harm, he may even kill the offender ; this rule applies, although the arrest is being made for a misdemeanor,” citing S. v. Dunning, 177 N. C. 559, 98 S. E. 530, 3 A. L. R. 1166, where Hoke, J., in speaking for the Court, said: “It is a principle very generally accepted that an officer, having the right to arrest an offender, may use such force as is necessary to effect the purpose, and to a great extent he is made the judge of the degree of force that may be properly exerted. Called on to deal with violators of the law, and not infrequently to act in the presence of conditions importing serious menace, his conduct in such circumstances is not to be harshly judged, and if he is withstood his authority and purpose being made known, he may use the force necessary to overcome resistance and to the extent of taking life if that is required for the proper and efficient performance of his duty. It is when excessive force has been used maliciously or to such a degree as amounts to a wanton abuse of authority that criminal liability will be imputed.”

And again in S. v. Miller, 197 N. C. 445, 149 S. E. 590, this Court, speaking through its present Chief Justice, said: “An officer, in making an arrest or preventing an escape, either in case of felony or misdemeanor, may meet force with force, sufficient to overcome it, even to the taking of life, if necessary. S. v. Dunning, 177 N. C. 559, 98 S. E. 530. And he is not required, under such circumstances, to afford the accused equal opportunities with him in the struggle. He is rightfully the aggressor, and he may use such force as is necessary to overcome any resistance. ... If the offender put the life of the officer in jeopardy, the latter may se de-fendeudo slay him; but he must be careful not to use any greater force than is reasonably and apparently necessary under the circumstances, for necessity, real or apparent, is the ground upon which the law permits the taking of life in such cases.”

*647 Conceding, but not deciding, that tbe defendant was duly clothed with a search warrant, directing him to search the home of Pearl Posey for whiskey, and he went there for that purpose, and while attempting to execute such warrant he was fired upon by Mrs. Posey, in the manner testified to by him, he would be entitled to have the jury pass upon (1) whether he was acting in good faith at the time; (2) whether he used more force than was necessary to the proper performance of his duty; and (3) whether he shot the prosecuting witness in self-defense. S. v. Jenkins, 195 N. C. 747, 143 S. E. 538; S. v. Finch, 177 N. C. 599, 99 S. E. 409.

We think the defendant is entitled to a new trial, and it is so ordered.

New trial.