State v. Turner, 222 S.E.2d 745 (NC Ct. App. 1976)

 

STATE OF NORTH CAROLINA v. EDWARD STEVE TURNER

No. 7529SC871

COURT OF APPEALS OF NORTH CAROLINA

29 N.C. App. 33; 222 S.E.2d 745; 1976 N.C. App. LEXIS 2373

 

February 17, 1976, Heard in the Court of Appeals

March 17, 1976, Filed

 

COUNSEL:

Attorney General Edmisten, by Assistant Attorney General Charles J. Murray, for the State.

Donald F. Coats for defendant appellant.

 

JUDGES: Britt, Judge.  Judges Hedrick and Martin concur.

 

OPINION BY: BRITT

 

OPINION

All of defendant’s assignments of error relate to the court’s instructions to the jury.  One of the challenged instructions reads as follows:

Now, Members of the Jury, the burden is on the defendant to prove self-defense to the satisfaction of the Jury and to prove he used no more force than was or reasonably appeared necessary under the circumstances to protect himself from death or great bodily harm.

The court committed error in placing the burden on defendant to prove self-defense.  In State v. Fletcher, 268 N.C. 140, 142, 150 S.E. 2d 54, 56 (1966), the court, speaking through Justice (later Chief Justice) Bobbitt, said: “. . . In prosecutions for felonious assault and for assault with a deadly weapon, it is not incumbent on a defendant to satisfy the jury he acted in self-defense.  On the contrary, the burden of proof rests on the State throughout the trial to establish beyond a reasonable doubt that defendant unlawfully assaulted the alleged victim.  S. v. Warren, 242 N.C. 581, 89 S.E. 2d 109, and cases cited; S. v. Sandlin, 251 N.C. 81, 110 S.E. 2d 481; S. v. Cloer, 266 N.C. 672, 146 S.E. 2d 815.”

Since the question of self-defense was a substantial feature of this case, we are compelled to hold that the erroneous instruction was prejudicial to defendant, entitling him to  a new trial.

We find is unnecessary to discuss the other assignments of error.

New trial.