State v. Pearson

• Decision Date: 26 June 1975
• Docket Number: No. 115,115
• Citation: 215 S.E.2d 598,288 N.C. 34
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Charles Austin PEARSON.

Page 598

215 S.E.2d 598

288 N.C. 34

STATE of North Carolina v. Charles Austin PEARSON.

No. 115.

Supreme Court of North Carolina.

June 26, 1975.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Archie W. Anders, Raleigh, for the State.

Bailey, Brackett & Brackett by Allen A. Bailey and Kermit D. McGinnis, Charlotte, for defendant-appellant.

COPELAND, Justice.

In his supplemental brief, defendant addresses himself primarily to the trial court's charge as it related to self-defense.

After charging the jury correctly as to the grounds for self-defense, Judge Winner gave the following instruction:

'Now, members of the jury, under the law of this State a person may not normally avail himself of self-defense when he has used deadly force to quell an assault or attack by someone who does not have a deadly weapon.

'However, if you are satisfied that because of the number of attackers or their size or the fierceness of the attack or all three of those things put together the defendant believed from the circumstances that he was in danger of death or suffering great bodily harm and that the belief was reasonable under the circumstances as they appeared to him at that time and that the force was not excessive and that the defendant was not the aggressor, then the defendant would have satisfied you of self defense.' (Emphasis supplied.)

At approximately 8:25 p.m. (Saturday night) the jury returned to the courtroom and asked the court to restate the elements of first-degree murder, second-degree murder, voluntary manslaughter, involuntary manslaughter, and self-defense. During the course of this subsequent charge, Judge Winner instructed the jurors as follows:

'To excuse the killing entirely on the grounds of self defense the defendant must satisfy you of four things. First, that it appeared to the defendant and he believed it to be necessary to shoot W. G. Morgan in order to save himself from death or great bodily harm. Second, that the circumstances as they appeared to the defendant at the time were sufficient to create such a belief as in the first part, the first element, in the minds of a person of ordinary firmness.

'It is for you, the jury, to determine the reasonableness of the defendant's belief in the circumstances as they appeared to him at that time. In making this determination you should consider the circumstances as you find them to have existed from the evidence, including size, age, strength of the defendant as compared to W. G. Morgan; the fierceness of the assault, if any, upon the defendant; whether or not W. G. Morgan had a weapon in his possession. And also although I did not include this in this part of the charge the first time, you may consider in determining this the number of assailants, if you find there were any, who attacked the defendant.

'Third, that the defendant was not the aggressor. If he voluntarily and without provocation entered the fight he was the aggressor, unless he thereafter attempted to abandon the fight and gave notice to W. G. Morgan that he was doing so either by word or act. One enters the fight voluntarily if he uses toward his opponent abusive language which considering all the circumstances in calculated and intended to bring on a fight. And, fourth, that the defendant did not use excessive force, that is, more force than reasonably appeared to be necessary to the defendant at the time. Again, it is for you, the jury, to determine the reasonableness of the force used by the defendant and under all the circumstances as they appeared to him at that time.

If you will remember at this point I charged you that normally a person cannot use deadly force and avail himself of self-defense if the other side did not have a deadly weapon. You want me to go over that?' (Emphasis supplied.)

As a result of the question propounded by the court, the following transpired:

'FOREMAN: I think that is sufficient, Your Honor.

'MR. BAILEY: May I approach the bench?

'THE COURT: Yes, sir.

'(Conference at the bench)

'THE COURT: I think I'd better go over it all.'

Following the 'bench conference' between the court and defendant's attorney, the court instructed the jury, in pertinent part, as follows:

'A person under the law may not normally avail himself of self defense when he has used deadly force to quell an assault by someone who has no deadly weapon. In other words, a simple assault within the law. However, if you are satisfied that because of the number of attackers or their size or the fierceness of the attack the defendant believed from the circumstances that he was in danger of death or suffering great bodily harm and that the belief was reasonable under the circumstances as they appeared to him at that time and that the force was not excessive and that the defendant was not the aggressor and that the defendant would have still satisfied you of self defense. If you find the defendant acted in self defense he would not be guilty.' (Emphasis supplied.)

After receiving all of the above instructions, the jury retired and shortly thereafter returned with a verdict finding defendant guilty of voluntary manslaughter.

Defendant strongly contends that the trial court committed prejudicial error when it instructed the jury on three separate occasions that 'a person under the law may not normally avail himself of self defense when he has used deadly force to quell an assault by someone who has no deadly weapon.' We find no merit in this contention.

In State v. Deck, 285 N.C. 209, 203 S.E.2d 830 (1974), this Court, in an opinion by Justice Branch, stated the general rules applicable to the defense of self-defense as follows:

'The right to act in self-defense is based upon necessity, real or apparent, and a person may use such force as is necessary or apparently necessary to save himself from death or great bodily harm in the lawful exercise of his right of self-defense. A person may kill even though it be not necessary to kill to avoid death or great bodily harm if he believes it to be necessary and he has reasonable grounds for such belief. The reasonableness of his belief is to be determined by the jury from the facts and circumstances as they appeared to the accused at the time of the killing. State v. Gladden, 279 N.C. 566, 184 S.E.2d 249; State v. Jennings, 276 N.C. 157, 171 S.E.2d 447; State v. Kirby, 273 N.C. 306, 160 S.E.2d 24.' Id. at 214--15, 203 S.E.2d at 834. See generally 4 Strong, N.C.Index 2d, Homicide § 28 (1968).

In considering these general rules it is particularly important to keep in mind the distinction between deadly force (force intended or likely to cause death or great bodily harm) and nondeadly force (force neither intended nor likely to do so). It is also important to distinguish force which is reasonable from that which is unreasonable. One commentator has differentiated between the two as follows:

'. . . Deadly force and reasonable force are neither mutually exclusive nor collectively exhaustive. Deadly force is unreasonable if nondeadly force is obviously sufficient to avert the threatened harm, but may be entirely reasonable under other circumstances. And even nondeadly force is unreasonable if it is obviously and substantially in excess of what is needed for the particular defense.' R. Perkins, Cirminal Law 993 (2d ed. 1969) (hereinafter cited as Perkins).

Another distinction applicable to the deadly force--nondeadly force dichotomy is made between assaults with felonious intent (use of deadly force) and assaults made without felonious intent (use of nondeadly force). In the latter the person assaulted may not stand his ground and kill his adversary, if there is any way of escape open to him, although he is permitted to repel force by force and give blow for blow. See, e.g., State v. Anderson, 230 N.C. 54, 51 S.E.2d 895 (1949); State v. Ellerbe, 223 N.C. 770, 28 S.E.2d 519 (1944); State v. Bryant, 213 N.C. 752, 197 S.E. 530 (1938); State v. Johnson, 184 N.C. 637, 113 S.E. 617 (1922). In the former, however, where the attack is made with murderous intent (i.e., deadly force), the person attacked is under no obligation to retreat, but may stand his ground and kill his adversary, if need be. See, e.g., cases above cited. These retreat rules ordinarily have no application, however, when a person, who is free from fault in bringing on a difficulty, is attacked in his own dwelling, home, place of business, or on his own premises. In this type situation the law imposes no duty to retreat as a condition to exercising the right of self-defense--regardless of the character of the assault. See, e.g., State v. Pennell, 231 N.C. 651, 58 S.E.2d 341 (1950). A person assaulted in his home or place of business is said to already be 'at the wall' and therefore need not retreat. See, e.g., State v. Miller, 221 N.C. 356, 20 S.E.2d 274 (1942).

A corollary of the above rules is the general principle, heretofore recognized by this Court, that deadly force is not privileged against nondeadly force. See, e.g., State v. Watkins, 283 N.C. 504, 196 S.E.2d 750 (1973); State v. Ellerbe, Supra; State v. Dills, 196 N.C. 457, 146 S.E. 1 (1929); State v. Gaddy, 166 N.C. 341, 81 S.E. 608 (1914); State v. Hill, 141 N.C. 769, 53 S.E. 311 (1906). See also State v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971) (negative inference). But, even this rule is qualified where there is a great disparity in strength between the defendant and his assailant, or where the defendant is attacked by more than one assailant. Under these circumstances, death or great bodily harm is possible without the use of any weapons by the assailant or the assailants, and the defendant therefore may be justified in employing deadly force to repel such an attack. See, e.g., State v. Gaddy, Supra; State v. Hill, Supra. See generally Perkins, Supra, at 993--1018.

In State v. Hill, Supra, the above rule was well stated by Justice Hoke as follows:

'It is true, as a general rule, or under ordinary conditions, that the...