Judge BECTON dissenting.

The defendant was indicted for discharging a firearm into an occupied dwelling in violation of N.C. Gen. Stat. 14-34.1. He was found guilty in a jury trial and sentenced to three to five years imprisonment.

The evidence indicated that Carey Mae Tilley and members of her family, including Joanne Tilley, the defendant's estranged girl friend, were in their home on the evening of 13 July 1980. On that evening, shots were fired at the occupied dwelling, resulting in damage to the house. The defendant presented conflicting evidence as to whether he shot at the house, but he maintained that the initial gunshot came from the Tilley house.

MARTIN (Robert M.), Judge.

The defendant's first assignment of error concerns the failure of the trial judge to submit to the jury the issue of self-defense. The trial judge is required to charge on self-defense, even without a special request, when there is some construction of the evidence from which could be drawn a reasonable inference that the defendant assaulted the victim in self-defense. State v. Goodson, 235 N.C. 177, 69 S.E.2d 242 (1952); State v. Lewis, 27 N.C. App. 426, 219 S.E.2d 554 (1975), cert. denied, 289 N.C. 141, 220 S.E.2d 799 (1976). No construction of the evidence in this case supports such a charge.

Here the defendant is charged with discharging a firearm into an occupied dwelling. He was standing in the yard of a house two houses away from the Tilley dwelling. The defendant and his two companions were armed with guns and were drinking. The defendant alleges that the initial shot came from the Tilley house before he began firing his gun. Nowhere did the defendant's evidence indicate that he fired at anyone in order to save himself from death or bodily harm. In his statement to the police following his arrest, the defendant stated in pertinent part:

I, Jimmy Musselwhite, fired a shotgun at the residence of Carey Mae Tilley and Joanne Tilley after someone at that residence had fired a shotgun, or what appeared to be pistol shots, in the direction of Richard Bass' residence, located at 155 "E" Avenue. I am not sure who fired the shots in that direction, but I do know that the shots came from the residence of Carey Mae Tilley.

At trial, the following testimony was elicited from the defendant on direct examination:

Q. All right, sir. Do you recall on the night of July 13th, whether you were fired at while at Richard Bass' house?

A. See, me and Joanne, we had an argument, and we was standing there, she cussed me and I cussed her, and then I must have stepped on some of them's feet, because I heard a pistol go off, and right there, there's a stump in front of the house, and there was a shotgun went off twice, and so when I looked —

COURT: Wait a minute. Did you hear a pistol or a shotgun?

WITNESS: Both of them. So, I reached and grabbed the shotgun and I shot up in the air, and Bimbo and Pete took the shotgun away from me.

We are in full accord with the sound principle of law on self-defense enunciated in State v. Ferrell, 300 N.C. 157, 265 S.E.2d 210 (1980) and in State v. Marsh, 293 N.C. 353, 237 S.E.2d 745 (1977). The facts in the case before us, however, do not invoke their application. In Ferrell the deceased and the defendant were in close physical proximity, as they were in the same room — not so here. In that case evidence that the deceased had a box cutter in his hand and had struck the first blow was sufficient to permit the jury to reasonably infer that the defendant acted in self-defense. Similarly, Marsh involved an exchange of gunfire at close range in which the victim allegedly shot at the defendant twice before the defendant returned fire. In the present case the defendant heard a gunshot, did not see who fired it, but nevertheless opened fire on a house, two houses away from where he was standing. The defendant testified that the initial shot was toward the residence of Richard Bass and that he returned fire, not at any particular person, but at the building itself. There is no evidence that the defendant was or reasonably believed himself to be in danger of death or great bodily harm. A jury could not reasonably infer that the defendant was acting in self-defense. Consequently, this assignment of error is overruled.

The defendant also contends that insufficient evidence of acting in concert existed to support a jury instruction on that theory and furthermore that the instructions as given were erroneous.

Carey Mae Tilley testified that she saw the defendant and the two other men shooting at her house, but she could not tell which shots actually struck the dwelling. The defendant in one statement admitted to shooting into the house, while in court he only admitted to firing a shot into the air. The evidence supports the conclusion that all three men were together at the scene of the incident and that they all fired their guns. Without finding specifically that the shot from defendant's gun hit the house, the jury could find a common purpose to commit a crime and thus find the defendant guilty of acting in concert. Quoting Justice Exum in state v. Joyner, 297 N.C. 349, 356-57, 255 S.E.2d 390, 395 (1979):

Where the state seeks to convict a defendant using the principle of concerted action, that this defendant did some act forming a part of the crime charged would be strong evidence that he was acting together with another who did other acts leading toward the crimes' commission. That which is essentially evidence of the existence of concerted action should not, however, be elevated to the status of an essential element of the principle. Evidence of the existence of concerted action may come from other facts. It is not, therefore, necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.

In State v. Lovelace, 272 N.C. 496, 158 S.E.2d 624 (1968), two men, Dixon and Lovelace, were convicted of the felonious possession of implements of housebreaking. The tools were seen in the actual possession of Dixon only. Both men however were observed at the entrance to a restaurant at 1:45 a.m. on a Sunday morning. The front door to the restaurant showed evidence of tool marks around the lock. This Court held that even if only Dixon had actual possession of the tools at the time the men were apprehended, "if the men were acting together in the attempt to use them to force entry into the restaurant, both in law would be equally guilty of the unlawful possession." Id. at 498, 158 S.E.2d at 625. Concluding that the evidence was sufficient to find that the two men "were acting together," the Court, on Lovelace's appeal, affirmed his conviction.

In the case before us the evidence indicates that all three of these men were acting together pursuant to a common plan to fire gunshots at the Tilley dwelling. The testimony tended to show that the three men were together and armed immediately before the shooting occurred. Whether the defendant fired his gun into the air or at the house, someone in his group definitely fired the shots which damaged the building. The jury could find from the evidence that all of these men are equally guilty of the crimes committed by any one of them pursuant to their common purpose under the principles approved in Lovelace and Joyner.

The instructions on acting in concert given by the trial judge follow the instructions upheld in State v. Joyner, supra. These instructions were not unfavorable to the defendant. We, therefore overrule defendant's assignments of error relating to the application of the concerted action theory.

Defendant's final assignment of error concerns the in-court testimony of Officer R.A. Grice. Officer Grice testified that Joanne Tilley had told him that the defendant had threatened to kill her. "It is well settled that with the exception of evidence precluded by statute in furtherance of public policy [which exception does not apply to this case], the failure to object to the introduction of the evidence is a waiver of the right to do so, and its admission, even if incompetent, is not a proper basis for appeal." 4 Strong's N.C. Index 3d, Criminal Law 162, p. 825; State v. Wilkins, 297 N.C. 237, 254 S.E.2d 598 (1979).

The defendant raised no objection at trial regarding the admissibility of this testimony and cannot be heard to raise this objection for the first time on appeal. State v. Phelps, 18 N.C. App. 603, 197 S.E.2d 558, cert. denied, 283 N.C. 757, 198 S.E.2d 727 (1973); State v. Harrell, 16 N.C. App. 620, 192 S.E.2d 645 (1972); 4 Strong's N.C. Index 3d, Criminal Law 162.2, p. 828. Consequently this assignment of error is without merit.

No error.

Judge MARTIN (Harry C.) concurs.

Judge BECTON dissents.