State v. Graves, 196 S.E.2d 582 (NC Ct. App. 1973)



No. 7317SC350


18 N.C. App. 177; 196 S.E.2d 582; 1973 N.C. App. LEXIS 1811


May 23, 1973, Filed



Attorney General Morgan by Assistant Attorney General Walter E. Ricks III for the State.

Gwyn, Gwyn & Morgan by Melzer A. Morgan, Jr., for defendant appellant.


JUDGES: Baley, Judge.  Judges Brock and Britt concur.






The defendant assigns as error the failure of the court to charge the jury that he as a private citizen had the right to interfere in order to prevent Samuel Graves from committing a felonious assault on Beverly Henderson.

A private citizen has a right to go to the defense of another if he has a well grounded belief that a felonious assault is about to be committed upon such other person.  In fact, it is his duty to interfere to prevent the supposed crime.  State v. Hornbuckle, 265 N.C. 312, 144 S.E. 2d 12; State v. Robinson, 213 N.C. 273, 195 S.E. 824; State v. Clark, 134 N.C. 698, 47 S.E. 36. It is a matter for the jury to determine from the evidence under proper instructions if a defendant has such a well grounded belief that it will justify intervention in the defense of another.  State v. Robinson, supra.

There is ample evidence in this case from which a jury could conclude that a felonious assault was about to be committed by Samuel Graves upon his ex-girl friend, Beverly Henderson, and that the defendant had reason to believe that such an assault was imminent and was attempting to prevent it.  The defendant had witnessed the entry of Samuel Graves into Price’s Danceland and had seen Beverly Henderson forced to accompany Samuel against her will for several blocks. He knew that Samuel had threatened to kill Beverly and that he was a dangerous man with a propensity for violent conduct. Testimony given by defense witnesses indicated that Samuel was acting in a wild and irrational manner as if he had been drinking or taking some drugs and appeared to reach for his pocket just before defendant fired his gun.

The language in State v. Hornbuckle, supra, at 314-15, 144 S.E. 2d at 14, is here applicable: “In 41 C.J.S. Homicide, ß 385, page 188, et seq., it is said: ‘Where there is evidence which tends to support the issue that the homicide or assault was committed by accused in defense of the person of another, the court should fully, correctly, and explicitly instruct as to the law on this point as applied to the facts of the case.'”

In this case the court in its charge to the jury gave a summary of the contentions of the defendant but failed to explain and declare the law arising upon the defendant’s evidence with respect to the right of the defendant to go to the defense of a third person. It is prejudicial error when the court fails to instruct the jury on a substantial feature of the case arising on the evidence.  G.S. 1-180; Bulluck v. Long, 256 N.C. 577, 124 S.E. 2d 716.

The defendant also contended that the court erroneously excluded evidence offered by him tending to show that he was present and saw the prosecuting witness assault Oscar Wrenn with a knife and that the prosecuting witness had threatened to kill Beverly Henderson.  This bears directly upon the reasonableness of defendant’s belief that his girl friend was in danger of serious injury or death and would tend to justify his action in her defense.

By statute evidence of threats is admissible in assault cases upon a plea of self-defense.  G.S. 14-33.1.  Logically under proper factual circumstances such evidence is admissible upon a plea of defense of others.

Other assignments of error with respect to exclusion of evidence are not considered as they may not arise in a subsequent trial.

The defendant is entitled to a new trial and it is so ordered.

New trial.


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