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17 N.C. App. 115

193 S.E.2d 288

State v. Moses

Court of Appeals of North Carolina

Decided December 20, 1972

Court of Appeals of North Carolina · decided 1972-12-20

Key passage — most relied on by later courts

“Persons in a family relation, and persons in the relation of master and servant, have the reciprocal right to come to the aid and defense of the person in that relation when faced with an assault. The law does not allow this interference as an indulgence of revenge, but merely to prevent injury. The assistant’s act may not be in excess of that which the law would allow the assisted party, for they are in a mutual relation one to another. In any event there must be some evidence pertaining to the doctrine before the Court is required to charge about it. Where there is no evidence from which the jury could find that the defendant reasonably believed a third person was in immediate peril of death or serious bodily harm at the hands of another, it would be improper for the Court to instruct on defendant’s defense of a third person as justification for the assault.”

quoted by 2 later decisions, including 194 N.C. App. 754 - State v. Moore, State v. Sessoms

Relies on State v. Robinson · State v. Cephus · State v. Fields

Good law ✅— No negative treatment on recordhow we know

Decided 1972-12-20

How this case has been cited

Cited by 16 later decisions — most recently April 2013

16 state decisions

6019721980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

CAMPBELL, Judge.

¶1 Defendant contends the trial court committed prejudicial error in failing to instruct the jury that at the time the shot was fired defendant was acting in defense of Dorothy Lee, and that therefore the assault was excused. There is no merit in this contention.

¶2 Persons in a family relation, and persons in the relation of master and servant, have the reciprocal right to come to the aid and defense of the person in that relation when faced with an assault. The law does not allow this interference as an indulgence of revenge, but merely to prevent injury. The assistant’s act may not be in excess of that which the law would allow the assisted party, for they are in a mutual relation one to another. State v. Johnson, 75 N.C. 174 (1876); State v. Gaddy, 166 N.C. 341, 81 S.E. 608 (1914).

¶3 Where a felonious assault is about to be committed, strangers may invoke the doctrine of self-defense of others under certain circumstances. State v. Rutherford, 8 N.C. 457 (1821); State v. Robinson, 213 N.C. 273, 195 S.E. 824 (1938); State v. Fields, 268 N.C. 456, 150 S.E. 2d 852 (1966).

¶4 In an assault case the defendant has no burden to prove self-defense. Thus, assault cases differ from the rule in homicide cases. State v. Cephas, 239 N.C. 521, 80 S.E. 2d 147 (1954).

¶5 In any event there must be some evidence pertaining to the doctrine before the Court is required to charge about it. Where there is no evidence from which the jury could find that the defendant reasonably believed a third person was in immediate peril of death or serious bodily harm at the hands of another, it would be improper for the Court to instruct on defendant’s defense of a third person as justification for the assault. State v. Cooper, 266 N.C. 644, 146 S.E. 2d 663 (1966).

¶6 In the instant case there is no evidence that Lee was committing a felonious assault on his wife, Dorothy, or that the defendant had reasonable grounds to believe that he was. There was no evidence of a special relationship between defendant and *117 Dorothy Lee; and there being no felonious assault, there was no occasion for the application of the doctrine of self-defense of a third person.

¶7 No error.

Judges Brock and Graham concur.
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