State v. Turner , 29 N.C. App. 33 ( 1976 )

BRITT, Judge.

All of defendant’s assignments of error relate to the court’s instructions to the jury. One of the challenged instructions reads as follows:

Now, Members of the Jury, the burden is on the defendant to prove self-defense to the satisfaction of the Jury and to prove he used no more force than was or reasonably appeared necessary under the circumstances to protect himself from death or great bodily harm.

The court committed error in placing the burden on defendant to prove self-defense. In State v. Fletcher, 268 N.C. 140, 142, 150 S.E. 2d 54, 56 (1966), the court, speaking through Justice (later Chief Justice) Bobbitt, said: “ In prosecutions for felonious assault and for assault with a deadly weapon, it is not incumbent on a defendant to satisfy the jury he acted in self-defense. On the contrary, the burden of proof rests on the State throughout the trial to establish beyond a reasonable doubt that defendant unlawfully assaulted the alleged victim. S. v. Warren, 242 N.C. 581, 89 S.E. 2d 109, and cases cited; S. v. Sandlin, 251 N.C. 81, 110 S.E. 2d 481; S. v. Cloer, 266 N.C. 672, 146 S.E. 2d 815.”

Since the question of self-defense was a substantial feature of this case, we are compelled to hold that the erroneous instruction was prejudicial to defendant, entitling him to a new trial.

We find is unnecessary to discuss the other assignments of error.

New trial.

Judges Hedrick and Martin concur.