¶1It is apparent from the facts revealed on this record that the defendant Dowdy at the time of the alleged shooting was acting in the capacity of a landlord and not in the capacity of a deputy sheriff.
¶2The plaintiff’s assignments of error Nos. 11, 12, 13 and 14 are based on exceptions to the court’s charge to the jury.
¶3The foregoing assignments of error are directed to and embrace those portions of the charge pertaining to accident or injury by misadventure and self-defense. The plaintiff contends that such charge was not warranted by the pleadings, the issues, or supported by the evidence.
¶4The defendant Dowdy’s answer expressly alleges that the plaintiff was injured at some other time and in some other manner than that alleged in the complaint and that the defendants had no connection with it, or that the injury was brought about “by accident or other means with' which these defendants were not connected.” This would negative the theory of injury by accident or misadventure as a defense in behalf of the defendant Dowdy.
¶5The plaintiff likewise excepted to the charge on self defense. The defendant Dowdy alleges in his answer that he fired one shot into the ground near his feet for the purpose of preventing an assault upon himself by certain members of the group of workers. It is not contended that the minor plaintiff was among the members of the group advancing on him. Moreover, the defendant Dowdy testified that the bullet which he fired into the ground was later taken from the ground and turned over to the State Bureau of Investigation, together with his pistol, and an agent of the State Bureau of Investigation testified that the bullet turned over to the Bureau by the defendant Dowdy had been fired from Dowdy’s gun. Therefore, in our opinion, the pleading of the defendant Dowdy with respect to the circumstances under which he fired his gun, in light of the other allegations in his answer, may not be construed as one of confession and avoidance upon which the plea of self-defense with respect to the minor plaintiff’s injuries may be based. Neither do we think the evidence of the defendant Dowdy would support such a plea if it had been alleged.
¶6It is error for the trial court to charge the jury as to material matters not raised by the pleadings or supported by the evidence and contained in the issues. Worley v. Motor Co., 246 N.C. 677, 100 S.E. 2d 70; Bank v. Phillips, 236 N.C. 470, 73 S.E. 2d 323; Childress v. Motor Lines, 236 N.C. 522, 70 S.E. 2d 558; Farrow v. White, 212 N.C. 376. 193 S.E. 386.
¶7*687In the instant case, the court instructed the jury to the effect that if it were satisfied from the evidence and by its greater weight that on the 18th day of June 1957 the defendant maliciously and wilfully, as those terms had been explained to be, and without justification fired his pistol in the direction of the plaintiff and others, and the plaintiff suffered injury as alleged, then it would- answer the first issue yes, “unless you find from the evidence that the injuries which plaintiff sustained, if any you find she did sustain, was the result of an accident or misadventure, as those terms have been explained and defined to you to mean, or unless you find that the defendant would have been justified in firing the shot under the principle of self-defense, as that term has been defined to you …; likewise, if the plaintiff has failed to satisfy you from the evidence and by its greater weight that the defendant wilfully and maliciously assaulted her and injured her, then it would be your duty to answer the first issue NO.”
¶8In light of the pleadings, issues, and evidence involved on this record, we think the court committed error in its charge to the jury with respect to accident or misadventure and self defense. Hence, the plaintiff is entitled to a new trial and it is so ordered.
¶9The motion of the defendant Dowdy to dismiss this appeal for that the plaintiff failed to preserve her exception to the refusal of the court below to set aside the verdict and grant a new trial, and upon the further ground that the plaintiff did not except to the signing of the judgment, is overruled.
¶10This Court has repeatedly held that an appeal itself constitutes an exception to the judgment. Bishop v. Bishop, 245 N.C. 573, 96 S.E. 2d 721, and cited cases.
¶11New Trial.