52 N.C. App. 326 | N.C. Ct. App. | 1981
Defendant first argues there was insufficient evidence to overcome his motions to dismiss, contending that the uncon-troverted evidence showed defendant acted in self-defense and in defense of his home. The evidence, considered in the light most favorable to the state, State v. McNeil, 280 N.C. 159, 185 S.E. 2d 156 (1971), shows that the deceased was shot five or six times, with four shots entering his back, another entering the back of his forearm, and one striking his left check. The lethal wound was caused by a shot into David’s back, going through his heart. When David was shot he was not inside the trailer, but in the yard, some distance from the trailer. This evidence is sufficient to carry the state’s case to the jury. Where, as here, the state does not introduce exculpatory evidence, defendant’s evidence tending to exculpate him is to be disregarded on motion for nonsuit. State v. Miller, 271 N.C. 646, 157 S.E. 2d 335 (1967). The assignment of error is without merit.
Defendant contends the court erred in its instruction to the jury on self-defense by failing to instruct that the jury should consider any statement by deceased of an intent to kill defendant. In summarizing the evidence, the court included this testimony. Later, in its charge on self-defense, the court stated:
It is for you, the Jury, to determine the reasonableness of the defendant’s belief from the circumstances as they appeared to him at the time and place in question. In making this determination, you consider all of the circumstances revealed by the evidence, as you find them to have existed from the evidence, including the size, age, and strength of the defendant, as compared to David Morelock, the fierceness of the assault, if any, upon the defendant by the deceased and whether or not the deceased had a weapon or some object in his possession.
Defendant made no request to the court to charge concerning deceased’s alleged threats to defendant. The court is not required to mention all the testimony in applying the law of self-defense to the evidence. Where the court fully and correctly instructs the jury upon the law of self-defense, it is not error to refuse to give defendant’s requested instructions. State v. Faust, 254 N.C. 101, 118 S.E. 2d 769, cert. denied, 368 U.S. 851 (1961). Here, defendant made no such request. We find no prejudicial error in this assignment.
We find no error in the court’s charge concerning burden of proof on the self-defense issue. The court properly placed the burden of proof upon the state to prove beyond a reasonable doubt that defendant did not act in self-defense. The court repeated this instruction at least three times in its charge.
Finally, defendant assigns error to the court’s instructions on defense of the home. The trial court gave its charge on defense of the home in connection with its instructions on self-defense. We find no error in so doing. “ ‘[T]he rules governing the right to defend one’s habitation against forcible entry by an intruder are substantially the same as those governing his right to defend himself.’ ” State v. McCombs, 297 N.C. 151, 156, 253 S.E. 2d 906, 910 (1979) (emphasis in original). Defendant’s evidence indicates a shooting inside the trailer, with defendant resisting in an alleged assault. The state’s evidence indicates an unprovoked shooting by defendant while his victim was in the yard, not making any effort to forcibly enter defendant’s home. Where one acts to prevent a forcible entry of his home, the defense of habitation arises. Id. Here, neither the state’s evidence nor the defendant’s evidence, nor any combination thereof, supports this defense. Defendant was not entitled to the challenged instruction. Any error therein was harmless and not prejudicial to defendant. Further, a review of this instruction discloses it to be in accord with McCombs, supra, where the Court held:
The North Carolina cases indicate that the use of deadly force in defense of the habitation is justified only to prevent a forcible entry into the habitation under such circumstances (e.g., attempted entry accompanied by threats) that the occupant reasonably apprehends death or great bodily harm to himself or other occupants at the hands of the assailant or believes that the assailant intends to commit a felony.
No error.
