Appeal by defendant from Lewis, Judge. Judgment entered 25 February 1981 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 6 April 1982.
Hedrick, Judge. Judges Hill and Becton concur.
All of the assignments of error on this appeal relate to the trial judge's charge to the jury.
Defendant first argues that the court's instructions deprived her of the benefit of the defense of imperfect self-defense. She contends that the trial judge's charge contained the same error found in State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981), where the expression "without justification or excuse" was used as the equivalent of self-defense throughout the charge and thus seemingly required the jury to find the existence of all four elements of perfect self-defense before the defendant could derive any benefit from imperfect self-defense. The Norris court distinguished the two categories of self-defense as follows:
The law of perfect self-defense excuses a killing altogether if, at the time of the killing, these four elements existed:
(1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and
(2) defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and
(3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and
(4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.
The existence of these four elements give the defendant a perfect right of self-defense and requires a verdict of not guilty, not only as to the charge of murder in the first degree but as to all lesser included offenses as well.
On the other hand, if defendant believed it was necessary to kill the deceased in order to save herself from death or great bodily harm, and if defendant's belief was reasonable in that the circumstances as they appeared to her at the time were sufficient to create such a belief in the mind of a person of ordinary firmness, but defendant, although without murderous intent, was the aggressor in bringing on the difficulty, or defendant used excessive force, the defendant under those circumstances has only the ...