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North Carolina v. Riley

Filed: March 16, 1982.

STATE OF NORTH CAROLINA
v.
BRODIE THOMAS RILEY



Appeal by defendant from Winberry, Judge. Judgment entered 18 March 1981, in Superior Court, Durham County. Heard in the Court of Appeals 13 Jan uary 1982.

Arnold, Judge. Judges Clark and Whichard concur.

Arnold

Defendant excepted to the failure of the trial court to charge the jury that defendant, being in his own home, had no duty to retreat from the alleged attack by his estranged wife. We think this exception is well taken and must be sustained.

Contrary to the State's contention, there was ample evidence from which the jury might have determined that defendant acted in self-defense. Indeed the trial court instructed on the question of self-defense, but it failed to charge that defendant, in his own home, had no duty to retreat from the alleged attack by the prosecuting witness. This failure constituted error, State v. Frizzellee, 243 N.C. 49, 89 S.E.2d 725 (1955), for which there must be a new trial.

Defendant's only other assignment of error relates to the trial court's shorthand instructions on defendant's right to defend against a nonfelonious assault. Since this alleged error is unlikely to recur at trial, we need not discuss it here.

New trial.

Disposition

New trial.

19820316

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