. . . As the evidence favorable to the defendant tends to indicate that defendant acted in defense of his wife, instructions as to his right to defend himself are inapplicable and misleading." (Citing State v. Lee, 193 N.C. 321, 136 S.E. 877.) Likewise this Court held in State v. Mosley, 213 N.C. 304, 195 S.E. 830: "1. That one may kill in defense of himself or his family when necessary to prevent death or great bodily harm. . . . 2.
This instruction is correct as a general statement of one phase of the law of self-defense. However, since the record here discloses no evidence tending to show that the defendant brought on the difficulty or was the aggressor, it necessarily follows that the instruction as it relates to the evidence in this case was partially inapplicable, incomplete and misleading. S. v. Lee, 193 N.C. 321, 136 S.E. 877; S. v. Waldroop, 193 N.C. 12, 135 S.E. 165. For the reasons given, it would seem that the defendant is entitled to another trial, and it is so ordered. This being so, it is not necessary to review the remaining assignments of error.
The plaintiff has no quarrel with this instruction as an abstract statement of the law, applicable to the facts in the Groome Case, but as applied to the facts of the instant record, she contends that serious injury was occasioned to her suit, because of its impertinently and distracting or misleading effect. S. v. Sally, ante, 225, 63 S.E.2d 151; S. v. Lee, 193 N.C. 321, 136 S.E. 877; S. v. Bryson, 200 N.C. 50, 156 S.E. 143; S. v. Anderson, 222 N.C. 148, 22 S.E.2d 271. The inapplicability of the instruction, so plaintiff says, arises from the fact that she had no previous knowledge of the defective condition of the street; that she was warranted in acting on the assumption the authorities of the city had used ordinary care in the discharge of their duty to keep the sidewalk reasonably safe for pedestrian travel, Russell v. Monroe, 116 N.C. 720, 21 S.E. 550, and that hence she never was presented with the choice of using a safe or a dangerous way to pass the hole or depression in question.
(Exception entered by later stipulation, discussed on brief and while there is no assignment of error based on the exception, undoubtedly the stipulation was intended to cover this also.) The instruction is correct as a general statement of the law of self-defense, but as applied to the defendant's evidence in the subject case, it would seem to be incomplete, if not inapplicable, and misleading. S. v. Bryson, 200 N.C. 50, 156 S.E. 143; S. v. Lee, 193 N.C. 321, 136 S.E. 877; S. v. Waldroop, 193 N.C. 12, 135 S.E. 165. The defendant being in his own home and place of business where he had a right to be, and acting in defense of himself and his habitation, was not required to retreat in the face of a threatened assault, regardless of its character, but was entitled to stand his ground, to repel force with force, and to increase his force, so as not only to resist, but also to overcome the assault. S. v. Roddey, 219 N.C. 532, 14 S.E.2d 526; S. v. Harman, 78 N.C. 515; S. v. Pennell, 224 N.C. 622, 31 S.E.2d 857. This, of course, would not excuse the defendant if he used excessive force in repelling the attack.
Here, however, the defendant says the facts do not call for its application, and hence it was misleading. S. v. Anderson, 222 N.C. 148, 22 S.E.2d 271; S. v. Bryson, 200 N.C. 50, 156 S.E. 143; S. v. Lee, 193 N.C. 321, 136 S.E. 877; S. v. Waldroop, 193 N.C. 12, 135 S.E. 165. While the principle might have been applied with more directness to the facts in hand, it is manifest that no material prejudice has resulted to the defendant from the instruction as given. It finds support in the defendant's own evidence.
Conceding the contention of the defendant, we do not see how he was hurt by the instruction. In S. v. Lee, 193 N.C. 321, 136 S.E. 877, where a similar charge resulted in a new trial, there was no evidence of an actual assault and the jury returned a verdict of murder in the second degree. But here the defendant testified that at the time the fatal shot was fired he was actually being assaulted by three members of the family of Deck Franklin; that Mrs. Franklin was choking him and the others had hold of the gun, while other members of the family were coming upon him, swearing they would kill him.
These instructions were misleading in respect of the burden of proof, since they were inapplicable to the facts of the case. S. v. Isaac, ante, 310; S. v. Anderson, 222 N.C. 148, 22 S.E.2d 271; S. v. Lee, 193 N.C. 321, 136 S.E. 877. Cf. S. v. Cameron, 223 N.C. 464, 27 S.E.2d 84. They undoubtedly weighed heavily against the appellants as the burden of proof is a substantial right of the party upon whose adversary it rests. Vance v. Guy, 224 N.C. 607; Hosiery Co. v. Express Co., 184 N.C. 478, 114 S.E. 823. "Where the court in its charge submits to the jury for their consideration facts material to the issue, which were no part of the evidence offered, there is prejudicial error."
S. v. Reynolds, supra; S. v. Terrell, 212 N.C. 145, 193 S.E. 161; S. v. Marshall, supra. As the evidence favorable to the defendant tends to indicate that defendant acted in defense of his wife, instructions as to his right to defend himself are inapplicable and misleading. S. v. Lee, 193 N.C. 321, 136 S.E. 877. The court should have instructed the jury adequately on the law of self-defense as it is applicable to the facts in the case. "The correctness of the instructions given is determined by the rules of law governing the right of self-defense as applied to the situation developed by the evidence."
(Exception.) We think it must be held that the exceptions to these instructions are well interposed. S. v. Cannon, 218 N.C. 466, 11 S.E.2d 301. True, they are addressed to language taken from the case of S. v. Anderson, 162 N.C. 571, 77 S.E. 238, used in stating an extreme example, and on the facts here in evidence the instructions would seem to be inapplicable. S. v. Lee, 193 N.C. 321, 136 S.E. 877. The evidence tends to show that the money was placed in the defendant's cedar chest without her immediate knowledge, at a time when she was drunk, and that it was removed by the officers before she had an opportunity to open the chest or to know it was there. This would seem to require that its presence in the defendant's cedar chest should be considered only as a relevant circumstance tending to show guilt, possible prearrangement, and, in connection with the other evidence in the case, sufficient to justify a conviction, if the jury should so find beyond a reasonable doubt.
Under these conditions, we think the instruction that the killing was presumed to be a case of murder in the second degree, was misleading and perhaps weighed too heavily against the defendant. S. v. Bryson, 200 N.C. 50, 156 S.E. 143; S. v. Lee, 193 N.C. 321, 136 S.E. 877; S. v. Waldroop, ibid., 12, 135 S.E. 165. New trial.