| N.C. | Apr 8, 1902
Whether there was excessive force used or not was a question for the jury, not for the court. The defendant's testimony was fuller than that of the prosecutor, but was not contradicted by him, and taking it to be true, as his Honor assumed, and as must be done on the virtual demurrer to her evidence, these are the (653) facts: Two strangers, one of them a white man, came to the defendant's home; she politely invites the latter in, and gives him her rocking-chair; without showing any credentials, he demands pay for her bedstead; upon her saying she had no money and asking him to wait till her husband came, the prosecutor jumps up violently, and swearing he would take the bedstead or go to hell trying, he throws her tablecloth and underskirt on the floor. She tells him to let her things alone. As she was ironing, presumably those things were freshly washed and nicely starched and ironed, and he must have known that to throw them on the floor would rouse her ire. Then he laid his profane hands on the paraphernalia of her bed and began to throw back the bedclothes and to lift the mattress, all of which would speedily have gone, of course, upon the floor. The defendant would not have been a woman if she had stood that. She seized her little boy's baseball bat and told him to let her things alone and leave the house, when he squared off at her, drawing back his fist, and called her "a damned fool," whereupon very naturally she batted the back of his head. It was probably a "left-fielder," for the prosecutor soon after left that field. The counsel for the prosecutor tells us he left because he did not wish to provoke a difficulty. It is doubtful if he could do more to provoke a woman, which is sometimes worse, and it would seem that he left rather than to collect another installment on the batting.
The woman was in her own house. If her evidence is true, and it must be so taken on this appeal, she treated the prosecutor politely, and he returned her politeness by swearing, throwing her things on the floor, throwing back the bedclothes and mattress, and avowing his intention to carry off her bedstead, at the direst hazard to his soul, and drawing back his fist at her, and cursing her when again told to desist. It can not be said, as a matter of law, with two men against her, and in her own house, she used excessive force in protecting her person, her home and her property. In view of his violent conduct (654) and language, and refusal to behave or to leave, could she have secured her rights in her own home or his departure by the use of less force? Could she with safety to her person have laid hands on him more gently? If, on another trial, the evidence being the same, it shall be held that this was excessive force, a jury must so declare it. This Court can not.
Sir Edward Coke (3 Inst., 162) says: "A man's house is his castle, *448 et domus sua cuique tutissimum refugium," which last is a literal quotation by him from the famous Corpus Juris Civilis of Justinian, and is to be found in the Pandects, lib. II, tit. IV, De in Jus Vocando. And another great lawyer and statesman, whose name is borne with honor by two of our counties, William Pitt, Earl of Chatham, used this ever-memorable expression: "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter; the rain may enter — but the King of England can not enter. All his forces dare not pass the threshold of the ruined tenement." The old colored woman knew naught of legal lore, but she had an instinctive sense of her rights, and, by means of the wooden wand touched to the back of witness's head, she communicated electrically to his brain the same conception more effectually than if she had read to him the above citations.
This home was an humble one; the bedstead on which defendant slept may not have been fully paid for, but the prosecutor had no right to enter that home and misbehave, or refuse to leave when ordered out, still less to carry off any property therefrom, unless he had been an officer with a legal precept so to do, and the occupant of that home had the right to use sufficient force to make him leave and to abandon his attempt to carry off the bedstead, and to stop his handling of (655) the other property — in short, to make him "leave her things alone," as the defendant repeatedly told him to do.
Whether, on these facts, the force used by the defendant was excessive is matter for a jury. Indeed, if this evidence is to be believed, the prosecutor was a lawbreaker, and is himself in jeopardy of the judgment for his violence and his defiant disregard of the rights of the defendant. Suppose this defendant had been white, and the prosecutor a negro man. The law is impartial, and extends the same protection to all alike.
Error.
Cited: S. v. Blackley,