State v. Edwards

Defendant contends that the trial judge committed error in his instructions to the jury in that, although the jury was instructed as to the justification of a defendant to act in defense of self, there was no instruction as to the right of the defendant to act in defense of his home.

Defendant offered evidence that he was in his home when he was threatened by the prosecuting witness and “somebody or *198Mr. Brown” subsequently fired a gunshot into the house. “Ordinarily, when a person, who is free from fault in bringing on a difficulty, is attacked in his own dwelling, or home, or place of business, or on his own premises, the law imposes upon him no duty to retreat before he can justify his fighting in self-defense, regardless of the character of the assault.” State v. Walker, 236 N.C. 742, 744, 73 S.E. 2d 868, 870 (1953). The right to defend one’s home from attack is a substantive right. State v. Spruill, 225 N.C. 356, 34 S.E. 2d 142 (1945). This, of course, does not sanction the defendant in using excessive force in repelling the attack, State v. Sally, 233 N.C. 225, 63 S.E. 2d 151 (1951), but it is for the jury, under proper instructions, to be the judge of the reasonableness of defendant’s actions.

Where, as here, there is evidence that defendant acted in defense of his home, an instruction on the defendant’s right to act in self-defense without an instruction also on the defendant’s right to act in defense of home contains prejudicial error. State v. Miller, 267 N.C. 409, 148 S.E. 2d 279 (1966).

New trial.