State v. Poplin , 238 N.C. 728 ( 1953 )

78 S.E.2d 777 (1953) 238 N.C. 728

STATE
v.
POPLIN.

No. 510.

Supreme Court of North Carolina.

December 2, 1953.

Atty. Gen. Harry McMullan, Asst. Atty. Gen. T. W. Bruton, for the State.

Ray S. Farris, Charlotte, James B. Ledford, Ellenboro, for defendant appellant.

WINBORNE, Justice.

While defendant, appellant, brings forward and presents in his brief several exceptions to the charge as given by the trial court to the jury, particularly in respect to the burden of proof, some of which may have merit, the assignments of error chiefly relied upon, and rightly so, are based upon exceptions to the failure of the trial court to declare and explain the law arising upon the evidence in the case as it relates to defendant's legal right to defend himself in his home, and to defend his home from attack, and to evict trespassers therefrom. See State v. Spruill, 225 N.C. 356, 34 S.E.2d 142, and cases there cited; also State v. Goodson, 235 N.C. 177, 69 S.E.2d 242, and cases cited.

And the conduct of defendant is to be judged in the light of these rights. Hence what is a home, in the light of the evidence in the case, is a salient element of the right.

These are substantive features of the case, as to which defendant is entitled to have the trial court declare and explain the law arising thereon, G.S. § 1-180, as amended by 1949 Session Laws, Chap. 107, even in the absence of special prayer for instruction in respect thereto. State v. Spruill, supra, and cases cited.

Other assignments of error need not be considered, as the matters to which they relate may not recur on another trial.

For error pointed out, let there be a

New trial.