{
  "id": 8548973,
  "name": "STATE OF NORTH CAROLINA v. CHARLES BOSWELL, JR.",
  "name_abbreviation": "State v. Boswell",
  "decision_date": "1974-12-04",
  "docket_number": "No. 747SC612",
  "first_page": "94",
  "last_page": "96",
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      "cite": "24 N.C. App. 94"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "136 S.E. 2d 84",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1964,
      "pin_cites": [
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      "cite": "261 N.C. 727",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8575389
      ],
      "year": 1964,
      "pin_cites": [
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          "parenthetical": "emphasis added"
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  "last_updated": "2023-07-14T19:54:40.635509+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge Brock and Judge Hedrick concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CHARLES BOSWELL, JR."
    ],
    "opinions": [
      {
        "text": "MARTIN, Judge.\nDefendant contends that the following charge given to the jury on self-defense amounts to prejudicial error:\n\u201cIf the defendant was not the aggressor and he reasonably believed that a murderous assault was being made upon him, if he was in his own home, he was not required to retreat but could stand his ground and use whatever force he reasonably believed to be necessary to save himself from death or great bodily harm. It is for you, the Jury, to determine the reasonableness of the defendant\u2019s belief from the circumstances as they appeared to him at the time.\u201d\nIn the present case, the evidence tends to show defendant was in his own home at the time of the killing and Luther Mason was heading for defendant\u2019s rifle after threatening defendant. Mason was found on the floor of defendant\u2019s home just inside the front door. Also, defendant and his wife testified that they were afraid of Mason. \u201cOrdinarily, when a person who is free from fault in bringing on a difficulty, is attacked in his own home or on his own premises, the law imposes on him no duty to retreat before he can justify his fighting in self defense, regardless of the character of the assault, but is 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 and secure himself from all harm. This, of course, would not excuse the defendant if he used excessive force in repelling the attack and overcoming his adversary. [Citations.]\u201d State v. Johnson, 261 N.C. 727, 136 S.E. 2d 84 (1964) (emphasis added).\nBecause the jury in the instant case could have logically deduced from the quoted portion of the charge and the charge as a whole that defendant was under a duty to retreat in his own home if the assault upon him was not murderous, we hold defendant deserves a new trial due to error in the charge.\nDiscussion of defendant\u2019s other assignments of error is unnecessary since the asserted errors to which they relate may not recur at the next trial.\nNew trial.\nChief Judge Brock and Judge Hedrick concur.",
        "type": "majority",
        "author": "MARTIN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Carson, by Associate Attorney Robert W. Kaylor, for the State.",
      "Farris, Thomas & Farris, by Robert A. Farris, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CHARLES BOSWELL, JR.\nNo. 747SC612\n(Filed 4 December 1974)\n1. Homicide \u00a7 9\u2014 assault on defendant in his home \u2014 duty to retreat\nOrdinarily, when a person who is free from fault in bringing on a difficulty is attacked in his own home or on his own premises, the' law imposes on him no duty to retreat before he can justify his fighting in self-defense, regardless of the character of the assault, but he is 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 and secure himself from all harm.\n2. Homicide \u00a7 28\u2014 duty of defendant to retreat in own home \u2014 erroneous instruction\nDefendant in a murder prosecution is entitled to a new trial where the jury could have logically deduced from the trial court\u2019s instruction that defendant was under a duty to retreat in his own home if deceased\u2019s assault upon him was not murderous.\nOn certiorari to review defendant\u2019s trial before Lanier, Judge, 27 November 1973 Session of Superior Court held in Wilson County. Heard in the Court of Appeals 12 November 1974.\nDefendant was indicted and tried for the murder of Luther Mason.\nThe State called two witnesses who testified that on the day- Luther Mason was killed they heard defendant make the following comments. One witness stated defendant referred to the deceased as \u201cthe one I\u2019m going to get,\u201d and the other witness overheard defendant tell the deceased, \u201cI\u2019m going to kill you\u201d and \u201cI got a hollow point bullet at the house waiting for you.\u201d These witnesses, along with defendant and the d\u00e9eeased, had been harvesting a tobacco crop belonging to the deceased. Ray Mason, the deceased\u2019s brother, testified he was working in his father\u2019s yard when defendant approached the yard carrying a rifle and stated he\u2019d just shot Luther Mason. Upon hearing this, Ray Mason took the rifle from defendant. There was also evidence tending to show that both the deceased and defendant had consumed some alcoholic beverages on the day of the killing. A medical doctor testified as an expert that the deceased had died as a result of a single gunshot wound in the chest. Finally, according to a deputy sheriff, defendant told the deputy that he had shot the deceased in the chest when the deceased entered defendants\u2019 house and was coming toward him in defiance of defendant\u2019s warning.\nDefendant\u2019s evidence tended to show the following. On the day of the shooting, according to defendant, Luther Mason threatened to kill defendant because Mason blamed him for a fire that had burned a tractor. Defendant denied threatening Mason. Following a day of \u201cbarning tobacco,\u201d defendant was bathing at home when Mason entered the house threatening to kill defendant. Defendant told Mason, \u201c [L] et\u2019s not have it that way,\u201d but Mason was making his way for defendant\u2019s rifle. Defendant got to the rifle first and intended to shoot Mason in the arm. However, Mason stumbled, and the movement caused the fatal chest wound. Defendant stated he was afraid of Mason and believed that Mason would have used the rifle against him. Defendant\u2019s wife testified that her husband had, said he didn\u2019t intend to kill Mason.\nThe jury found defendant guilty of second degree murder and he was sentenced to prison for eighteen to twenty years.\nAttorney General Carson, by Associate Attorney Robert W. Kaylor, for the State.\nFarris, Thomas & Farris, by Robert A. Farris, for defendant appellant."
  },
  "file_name": "0094-01",
  "first_page_order": 122,
  "last_page_order": 124
}