State v. Hornbuckle

Sep 22, 1965

Reporters:: , ,
Before:: DeNny

DeNny, C.J.

The evidence of the State and that of the defendant !is in sharp conflict. The prosecuting witness testified that he had no : knife and never attempted to use one. On the other hand, the defend- ; ant testified that the prosecuting witness tried to cut Myrtle Driver ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍with a yellow-handled knife and that he intervened and took the knife ’ away from the prosecuting witness to keep him from cutting Myrtle Driver who was a. guest passenger in the defendant’s automobile.

The defendant assigns as error the failure of the court below to charge the jury that he as a private citizen had the right to interfere in order to prevent the prosecuting witness from committing a felonious assault on Myrtle Driver.

The State concedes that the defendant’s evidence was sufficient to require an instruction as to the right of the defendant as a private ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍citizen to interfere with and prevent the prosecuting witness from committing a felonious assault on Myrtle Driver who was a guest passenger in his car.

In 41 C.J.S. Homicide, § 385, page 188, et seq., it is said: “Where there is evidence which tends to support the issue that the homicide or assault was committed by accused in defense of the person of another, the court should fully, correctly, and explicitly instruct as to the law on this point as applied to the facts of the case. * * *” ;

The law with respect to the right of a private citizen to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍interfere with another to prevent a felonious assault upon a third person is. well stated in S. v. Robinson, 213 N.C. 273, 195 S.E. 824, where Winborne, J., later C.J., said: “If the defendant * * * had a well-grounded’ belief that a felonious assault was about to be committed on * * * (another) , he had the right and it was his duty as a private citizen to interfere to prevent the supposed crime. The principle of law is well settled in this State. S. v. Rutherford, 8 N.C. 457; S. v. Roane, 13 N.C. 58; S. v. Clark, 134 N.C. 698, 47 S.E. 36.

“The ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍failure of the court to instruct the jury on substantive features of the case arising on the evidence is prejudicial error. This is true even though there is no special prayer for instructions to that effect. S. v. Merrick, 171 N.C. 788, 88 S.E. 501; S. v. Bost, supra (189 N.C. 639, 127 S.E. 689); S. v. Thornton, supra (211 N.C. 413, 190 S.E. 758); School Dist. v. Alamance County, 211 N.C. 213, 189 S.E. 873.”

In the instant case, the court in its charge to the jury gave the defendant’s contentions with respect to his right to defend Myrtle Driver but failed to explain and declare the law ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍arising on the evidence presented by the defendant. This constituted prejudicial error. S. v. Bryant, 213 N.C. 752, 197 S.E. 530; S. v. Robinson, supra; Keith v. Lee, 246 N.C. 188, 97 S.E. 2d 859; Therrell v. Freeman, 256 N.C. 552, 124 S.E. 2d 522.

The defendant is entitled to a new trial and it is so ordered.

New trial.