State v. Jones
255 S.E.2d 232
N.C. Ct. App.
1979
Check Treatment

Lead Opinion

HEDRICK, Judge.

The defendant first contends that the trial court erred in refusing to charge the jury on defense of home. In North Carolina, the courts have recognized a substantive right of an individual to defend his home from attack that is a separate right from that of an individual to defend himself or his family. State v. Spruill, 225 N.C. 356, 34 S.E. 2d 142 (1945).

When a trespasser enters upon a man’s premises, makes an assault upon his dwelling, and attempts to force an entrance into his house in a manner such as would lead a reasonably prudent man to believe that the intruder intends to commit a felony or to inflict some serious personal injury upon the inmates, a lawful occupant of the dwelling may legally prevent the entry even by the taking of the life of the intruder ... A householder will not, however, be excused if he employs excessive force in repelling the attack. . . [Citations omitted.]

State v. Miller, 267 N.C. 409, 411, 148 S.E. 2d 279, 281 (1966). See also State v. Gray, 162 N.C. 608, 77 S.E. 833 (1913).

We are of the opinion that there was insufficient evidence that the defendant’s actions in the present case were directed towards preventing the violent and forceful entry of an intruder *469into his home to require the judge to give an instruction on defense of home. By his own testimony, the defendant admitted that he did not shoot Lonnie Gregory until Gregory had turned on his brother. While the defendant did testify that he thought Gregory “was trying to get in on my mom and my sisters and my brothers, to hurt them or somebody,” the evidence also discloses that Gregory had stopped beating on the front door of the house and had turned toward the defendant’s brother when Gregory was shot. The defendant testified, “I fired the shots because he turned on my brother ... I shot him because he said he was going to hurt somebody and he had turned towards my brother at that time.” This testimony did raise the issue of defense of a family member, and the jury was properly instructed with regard to that defense. In light of the above, however, we think there was insufficient evidence presented to raise the issue of defense of habitation to require the judge to instruct the jury with regard to it.

The defendant next contends that the trial court erred by failing to charge the jury on the defendant’s right of self-defense. A person may use such force as is necessary to save himself from death or great bodily harm in the lawful exercise of his right to self-defense. A person may kill another in self-defense even if it was not necessary to kill to avoid death or great bodily harm if he believes it is necessary and has reasonable grounds for such belief. State v. Deck, 285 N.C. 209, 203 S.E. 2d 830 (1974). When the State or defendant produces evidence that the defendant acted in self-defense, then the trial judge must state and apply the law of self-defense to the facts of the case. On the other hand, if there is insufficient evidence of self-defense, there is no duty of the trial judge to give instructions on that defense. State v. Davis, 289 N.C. 500, 223 S.E. 2d 296 (1976).

In the present case there was no evidence that the defendant shot and killed Lonnie Gregory in self-defense. While the defendant did testify that he was frightened and scared, in order to require the judge to instruct on self-defense, there must be some evidence that the defendant acted out of a reasonable belief that it was necessary for him to kill or use the force used in order to save himself from death or great bodily harm. There was no evidence that Lonnie Gregory was, at the time he was shot, attacking or otherwise attempting to harm the defendant so that *470the defendant would have a reasonable basis for believing that he must kill in order to prevent his own death or serious injury. According to the defendant’s own evidence, the victim was in the process of fending off an attack from the defendant’s brother at the time he was shot twice in the back and once in the side. We hold that under this evidence, the trial judge properly refused to instruct the jury on self-defense.

Defendant’s final contention is that the judge erroneously failed to charge the jury that if the defendant acted out of a heat of passion he would only be guilty of voluntary manslaughter. Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and deliberation. State v. Davis, supra. When there are circumstances that cause an accused to kill another out of a heat of passion, a homicide may be mitigated from murder to manslaughter. State v. Jennings, 276 N.C. 157, 171 S.E. 2d 447 (1970). Heat of passion means “that the defendant’s state of mind was at the time so violent as to overcome his reason, so much so that he could not think to the extent necessary to form a deliberate purpose and control his actions.” State v. Pope, 24 N.C. App. 217, 222, 210 S.E. 2d 267, 271 (1974). In State v. Jennings, 276 N.C. at 161, 171 S.E. 2d at 450, the Court quoted with approval Black’s Law Dictionary’s definition of heat of passion as “any of the emotions of the mind known as rage, anger, hatred, furious resentment, or terror, rendering the mind incapable of cool reflection.”

In order to be entitled to an instruction on heat of passion negating the element of malice and reducing the offense from murder to manslaughter, there must be some evidence from the State or the defendant that the intent to kill was formed under the influence of some suddenly aroused violent passion. State v. Berry, 295 N.C. 534, 246 S.E. 2d 758 (1978); State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), rev’d on other grounds, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed. 2d 306 (1977); State v. Brogden, 36 N.C. App. 118, 243 S.E. 2d 181 (1978). In the absence of such evidence, the State is entitled to rely on the presumption that the killing was done with malice when it is admitted that the killing was accomplished with a deadly weapon. See State v. Chavis, 30 N.C. App. 75, 226 S.E. 2d 389, cert. denied, 290 N.C. 778, 229 S.E. 2d 33 (1976).

*471The ruling in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed. 2d 508 (1975), precludes the State from utilizing these presumptions in such a way as to relieve it of the burden of proof on the elements of malice and unlawfulness when the issue of their existence is raised by the evidence. State v. Berry, supra; State v. Hankerson, supra; State v. Brogden, supra.

In the present case, there was no evidence that the defendant acted out of a heat of passion. Indeed, the defendant’s own testimony indicates that he initially fired warning shots in an attempt to get Gregory to leave and then he shot the deceased to protect his brother. This evidence tends to show that the defendant’s actions were reasoned rather than the result of rage, anger, or some suddenly aroused violent passion. Thus, the State was entitled to rely on the presumption of malice and the defendant was not entitled to a mitigating instruction on heat of passion.

Defendant also argues under this assignment of error that if he had an “honest and actual belief” that the killing was necessary in order to prevent great bodily harm or death to his brother, that would be sufficient to rebut the presumption of malice. Defendant cites State v. Potter, 295 N.C. 126, 244 S.E. 2d 397 (1978), in support of this argument.

The rule argued for by the defendant has never been the law of North Carolina. In order for the killing of another to be excused on the basis of defense of a family member, the defendant must have had a reasonable belief that the killing was necessary to prevent the death or serious injury of the family member. State v. Kirby, 273 N.C. 306, 160 S.E. 2d 24 (1968). State v. Potter, 295 N.C. at 143, 244 S.E. 2d at 408, reaffirms the proposition that when a person is killed by another who is acting in self-defense, the killing will be excused if “it appeared to defendant and he believed it to be necessary to shoot [the attacker] in order to save himself from death or great bodily harm,” State v. Deck, supra, and “defendant’s belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness. State v. Ellerbee, 223 N.C. 770, 28 S.E. 2d 519 (1944).”

We hold defendant had a fair trial free from prejudicial error.

*472No error.

Chief Judge MORRIS concurs. Judge WEBB dissents.



Dissenting Opinion

Judge Webb

dissenting.

I dissent for two reasons. First, I believe the defendant was entitled to a charge on the defense of the home. The majority says this is not so because the deceased had turned away from trying to enter the house at the time he was shot. I would hold that although the deceased was not presently trying to force an entrance, the evidence showed he was on the porch for that purpose, and the defendant could reasonably believe he intended to commit a felony or inflict some serious personal injury upon the inmates. I do not believe he had to be in the act of trying to force his way in at the very moment the defendant fired the gun. See State v. Deck, 285 N.C. 209, 203 S.E. 2d 830 (1974) for a case in which the Supreme Court held self-defense should be charged although the deceased was not at that very moment threatening the defendant.

I also believe the defendant was entitled to a charge in regard to acting out of the heat of passion. I can imagine situations more provocative than the one defendant faced, but this one was certainly provocative enough. I believe a jury could reasonably conclude that the circumstances surrounding the defendant were enough to make a normal man so angry as to overcome his reason.