Appeal by defendant from Allsbrook, Judge. Judgment entered 19 October 1978 in Superior Court, Northampton County. Heard in the Court of Appeals 19 September 1979.
Erwin, Judge. Judges Vaughn and Hill concur.
Defendant contends that the trial court committed prejudicial error warranting a new trial in three events: (1) by failing to charge the jury on the right of defendant to act in defense of another when the evidence presented at trial warranted such instruction; (2) by failing to charge the jury on the lesser included offense of assault with a deadly weapon when the evidence presented at trial warranted such instruction; and (3) by imposing an invalid condition of probation on defendant, in that he was required to make restoration for amounts unsupported by the evidence. After careful consideration of the record, we find no prejudicial error in defendant's trial.
"The law with respect to the right of a private citizen to interfere with another to prevent a felonious assault upon a third person is well stated in S. v. Robinson, 213 N.C. 273, 195 S.E. 824, where Winborne, J., later C.J., said: 'If the defendant * * * had a well-grounded belief that a felonious assault was about to be committed on * * * (another), he had the right and it was his duty as a private citizen to interfere to prevent the supposed crime. The principal of law is well
settled in this State. S. v. Rutherford, 8 N.C. 457; S. v. Roane, 13 N.C. 58; S. v. Clark, 134 N.C. 698, 47 S.E. 36.
'The failure of the court to instruct the jury on substantive features of the case arising on the evidence is prejudicial error. This is true even though there is no special prayer for instructions to that effect. S. v. Merrick, 171 N.C. 788, 88 S.E. 501; S. v. Bost, supra (189 N.C. 639, 127 S.E. 689); S. v. Thornton, supra (211 N.C. 413, 190 S.E. 758); School Dist. v. Alamance County, 211 N.C. 213, 189 S.E. 873.'"
The question becomes: Does the evidence in the record show that Grant committed a felonious assault on Mrs. Parker or that defendant had reasonable grounds to believe that he would commit such an assault? We do not find such evidence.
"Mr. Grant had grabbed Mrs. Parker, was trying to get her inside the bedroom. He reached up at the top of her blouse and just pulled all of it down. When he tore the blouse off, I went there and told him to come out and go on home. He cursed me and started pushing on me. He told me he wasn't going home and wasn't going to do this and that and ran his hand in his pocket and pulled out his knife. I grabbed him by his right hand and reached back in the drawer and pulled out the gun and shot him through the wrist. I did that in self-defense to keep him from cutting me. I shot him again because after I shot the first time he dropped his hand and didn't even know the shot was fired. He didn't act like he was paying any attention at all and he kind of eased back a little bit and said that he would fix me. Then I just shot him the second time. After I shot him the second time, he said everything was all right and he left and went out to his car." (Emphasis added.)
In the instant case, there is not any evidence to support defendant's contention that he had reasonable grounds to believe that a felonious assault had been committed on Mrs. Parker. His testimony relates solely to self-defense. The trial court was not required to instruct the jury on the issue of defense of a third person. State v. Moses, 17 ...