State v. Shelton

25 N.C. App. 207 | N.C. Ct. App. | 1975

PARKER, Judge.

In apt time the defendant requested that the court instruct the jury with regard to the law applicable to defendant’s right to act in self-defense. The court refused to do so, and instead instructed the jury:

“Members of the jury, the court instructs you that in this case, there is no evidence of any legal justification that has been presented in the trial of this case.”

The right of self-defense rests upon necessity, real or apparent. In the exercise of his lawful right of self-defense, a person may use such force as is necessary or apparently necessary to protect him from death or great bodily harm. “In this connection, the full significance of the phrase ,‘apparently necessary’ is that a person may kill even though to kill is not actually necessary to avoid death or great bodily harm, if he believes it to be necessary and has a reasonable ground for that belief. The reasonableness of his belief is to be determined by the jury from the facts and circumstances as they appeared to him at the time of the killing.” State v. Gladden, 279 N.C. 566, 572, 184 S.E. 2d 249, 253 (1971).

In this case, defendant’s evidence, if believed by the jury, would support the following findings: Defendant and ■ his friends, seeking to avoid trouble, attempted to leave the restaurant. They were prevented from doing so by Basinger’s unprovoked assault on Singleton. During the ensuing fight, defendant saw a pistol fall to the floor. This gave notice of the possibility that others in the room might also be armed. As defendant straightened up after picking up the pistol, Cresswell, one of Basinger’s companions, appeared to be drawing “a shiny object” from his belt. Thinking that this object was another weapon which Basinger’s companion was about to use in an attack upon Singleton and upon him, defendant instantly reacted by firing the pistol which he had just picked up. In so doing, defendant believed it to be necessary in order to avoid death or great bodily harm and he had reasonable ground for that belief.

Certainly the jury might disbelieve some or all of defendant’s evidence. Certainly also the jury, even had they believed him, might well find that he did not act under a reasonable apprehension that it was necessary for him to do so under the circumstances as they appeared to him in order to save himself from death or great bodily harm, or that he used more force than reasonably appeared to be necessary. It was, however, for the jury and not for the court to make such findings. By withdrawing these matters from jury consideration, the court committed error for which defendant is entitled to a

New trial.

Judges Morris and Hedrick concur.